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State v Ali - Summing Up [2012] FJHC 13; HAC023.2010 (20 January 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO:
HAC 023 of 2010

BETWEEN:

STATE
Prosecution

AND:

IMTIAZ ALI
The Accused

Dates of Trial : 17-18 January 2012
Date of Summing-Up : 20 January 2012

Ms L Vateitei for the State
Mr H A Sha for the Accused

SUMMING-UP

Madam Assessors and Gentleman Assessor

1. Evidence in this case has now come to an end. At its conclusion, the law requires me to sum-up the case to you on law and evidence. 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 very carefully and attentively. This will enable you to form your individual opinion as to facts in accordance with the law in order to decide on the innocence or guilt of the accused-person. Your individual opinion, please remember, carries a great weight and they will be considered by court in coming to the final decision of this court. This tells how important your task is.
   
2. In my summing-up 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 has to oversee that the trial is conducted according to law.
   
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. No one 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. If the court agrees with such opinions, court will give the final judgment of the case accordingly.
   
4. Your duty, therefore, is a noble one as it will ultimately decide whether the accused-person is not-guilty or guilty of the offence.
   

5. Let me explain 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 the course of the conduct of the people in their day-to-day lives. 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 such opinion if that does not match your thinking on the matter. You must instead form your own opinion 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 the counsel for the accused have made submissions to you as to how you should find the facts of the case. They have done so 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 them.
   

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 woman. An incident of rape would certainly shock the conscience and feelings of your hearts. It is quite natural given the inherent compassion and sympathy with which 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. 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, therefore, lies always with the prosecution. 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-person, 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, such as this, 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 a 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 in 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. Ladies and gentleman, 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 filed, on 17 January 2011, which was read over to the accused-person, upon which this trial proceeded. It is under Section 207 (1) (2) (a) of the Crimes Decree No 44 of 2009. (Section 207 read out.) The particulars of the offence, as alleged by the prosecution, are:
    

'Imtiaz Ali, on the 10th day of March 2010 at Lautoka, had unlawful carnal knowledge of Adi Sovanatabua without her consent.'

18. (i) 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) (a) states as follows:

'A person rapes another person if the person has carnal knowledge with or of the other person without the other person's consent.

(ii) Carnal knowledge is to have sexual intercourse with penetration by the penis of a man of the vagina of a woman to any extent. Such penetration should not be to the extent of ejaculation or should not go through the full passage of the vagina. Instead, mere insertion of the penis into the vagina is sufficient to constitute penetration.

(iii) Consent means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent. You should bear in mind that the submission by a woman without a physical resistance by itself shall not constitute consent. A woman of or over the age of 13 years is considered by law as a person with necessary mental capacity to give consent.

(iv) Consent is considered not to have been given freely and voluntarily if it is obtained by force, by threat or intimidation, or by fear of bodily injury or by false or fraudulent representation or by a mistaken belief induced by the accused person that he was the woman's sexual partner.

19. So, the elements of the offence are that the accused penetrated the vagina of the victim to some extent, which means that the insertion of the penis fully into the vagina is not necessary. Such penetration should have taken place without the consent of the woman.

20. Proof can be established only through evidence. Evidence can be direct 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, the complainant is a witness who offered direct evidence, if you believe her, as to what she saw and felt.

21. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document.

22. In this case, interview and charge statements, which are before you, are documentary evidence. If you believe such a record of interview was made, as the prosecution presented to you, then you can act on such evidence.

23. You must consider all direct evidence - that is what witnesses saw, heard or perceived by his/her senses as well as documentary evidence. You must, in addition, consider circumstantial evidence that is the evidence that you gather after putting some proved facts together. From each circumstance you can infer certain facts as such circumstances would warrant.

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

(i) The complainant Adi Sovanatabua, 21, was living in Tomuka, Lautoka. She was returning home around 11.00 p.m. after finishing her afternoon shift at Cathay Hotel in Lautoka. She boarded the taxi driven by the accused in order to get back home.

(ii) As they were passing the Lautoka Police Station, the accused asked the complainant whether he could go to Tawakubu to pick up a parcel from a family member and bought barbeque for her. The accused proceeded past Tawakubu to Abada Road and the complainant felt suspicious that the accused would do something to her. The accused then stopped the taxi after passing a creek.

(iii) The complainant attempted to unlock the door but failed as the accused had the control over the door locks. The accused threatened the complainant with an empty beer bottle and jumped over to the rear seat that she was occupying. They had a scuffle as the accused held the complainant by her hair with one of his hands while the other hand strangled her neck.

(iv) The accused then laid on the complainant and took off her pants with one hand while holding her hands with the other hand of the accused and inserted his penis and ejaculated into her vagina.

(v) The complainant got home thereafter and told her aunt, Tokasa Masi why she was late. The aunt asked what actually happened as she came back after a shower. The complainant then told the aunt that she was raped. They thereafter lodged a police complaint. The accused, after being shown by the complainant, was later arrested by police.

(vi) The complainant was medically examined by a female doctor who made notes while examining.

(vii) The complainant identified the accused as the person who allegedly had had forcible sexual intercourse with her.

25. Under cross-examination, the complainant said that she had visited the accused in remand prison at the request of the mother of the accused and asked $ 3000.00 to withdraw the complaint of rape. The complainant, however, said that she would not have accepted money even if she was offered.

26. The complainant denied the suggestion that she offered sexual contact in return for her being dropped at home. She accepted that the accused bought barbeque after turning to an opposite direction. She said that she could not disembark as it was dark in the night.

27. She said that her neck was being held by the accused with one hand and while the other was on her pants for about ten minutes before the accused released his hand on the neck to remove the pants.

28. The complainant admitted that it was after taking a shower she had told her aunt the story of rape. It was so said to police as well. She further said that the doctor did not find any marks around the neck or elsewhere at her examination. The doctor examined her vaginal area and took swab and found no spermatozoa.

29. The statement of Tokasa Masi, the aunt of the complainant, was placed in evidence with the consent of both parties. Tokasa Masi revealed that it was after a shower that the complainant, on being questioned, told her about the incident of rape on ABC Road by an Indian Taxi driver. She then had telephoned the police and the matter was reported.

30. Dr Ashna Raffiq gave evidence on examination of the complainant on 11 March 2010 after the alleged incident. The doctor said that the complainant looked to be distressed but found no external injuries on her body. On examination of the genitalia, the doctor found two 2mm lacerations and erythema around the vulva. No vaginal bleeding or discharge was observed.

31. Answering cross-examination, the doctor said that the two lacerations were outside vaginal canal and that she did not note any penal penetration of the vagina in her records. The doctor said that one way of determining penetration of the vagina was to have bleeding and seminal remnants on the vagina and she saw none. She did not find redness on the vaginal walls. The doctor said that it was possible for the head of the penis to have missed the vagina and hit the vulva instead in view of the seating postures of the complainant and the accused on the rear seat of the car. Answering further, the doctor said that it was the history that persuaded her to come to the finding of rape.

32. In re-examination, the doctor said that erythema or redness was found around vulva and that nothing was observed inside the vaginal canal. Answering court, the doctor said that she had found no evidence suggestive of penal penetration.

33. At the conclusion of the doctor's evidence, the prosecution placed the 'Charge Statement' marked as 'PE-1' and the 'Caution Interview Statement' marked as 'PE-2' of the accused. The prosecution also tendered in evidence the statement of Ms Tokasa Masi, the aunt of the complainant, as 'PE-3'. The case for the prosecution was then closed.

34. After the case for the prosecution was closed, you may recall, that I explained the rights available to the accused. I was under a 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 that he can exercise options available under law. The accused, in consultation with his learned counsel, decided not to give evidence. That is his legal right and you must not consider the exercise of that option as prejudicial to the accused.

35. The accused closed his case by marking a handwritten measurement of 2mm marked as 'DE-1'

36. I have summarized all relevant 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.

37. In summary, the prosecution presents two kinds of evidence to establish its case. One is the oral evidence of the complainant-Ado Sovanatobua, who allegedly became the victim of the offence; and, the other is the admission made by the accused in the cautioned-interview statement.

38. The version of the virtual complainant is that the accused had sexual intercourse with her without the consent.

39. The version of the accused is that he had sexual intercourse with the complainant with her consent as put to the complainant in cross-examination on behalf of the accused. This version was taken-up on or about 11 March 2010 too, soon after the incident in the cautioned-interview statement by the accused.

40. The prosecution relied on the cautioned-interview statement of the accused. Therefore, quite interestingly, the prosecution's case is consisted of the two diametrically opposite versions insofar as the act of sexual intercourse is concerned. That is something unique and/or peculiar in this case and you should take serious note of.

41. If you believe the version of the accused that he had sexual intercourse with consent, which the prosecution itself presents as part of its case in the form of a cautioned-interview statement, then the case for the prosecution fails and you must form the opinion of 'not guilty' without any further deliberations. In considering the cautioned-interview statement, you must note that there was no challenge to it and that it was presented to you with the consent of both parties. You must also recall that the learned State Counsel repeatedly drew your attention to the fact that the accused had admitted the act of sexual intercourse with the complainant. There is no basis for you to accept one part and reject the other parts of the cautioned-interview statement in the absence of any challenge to it. In that context you must consider the overall position of the accused that he has had sexual intercourse with consent as given in that statement, which is also the part of the prosecution's case.

42. Therefore, when you take into account the version of the complainant that she was subjected to sexual intercourse without her consent, you equally need to take into account the version of the accused, as given in the cautioned-interview statement and presented by the prosecution itself at the trial. You must then consider whether or not a reasonable doubt arises in the prosecution's case in view of these two contradictory stories. Such doubt, if you find, should always be resolved in favour of the accused and form the opinion of 'not guilty'.

43. In either case, that is the respective version of having sexual intercourse with consent or without consent, the requirement of penetration of the vagina with the penis is essential to prove the charge of rape in this case. The issue of penetration, therefore, should be considered not in the subjective assessment of the complainant or the accused in relation to what they felt at the height of sexual intercourse; but, on an objective assessment of evidence presented to court. And, the issue should be decided by you on assessment of all evidence and not only on what each party felt or said in court or elsewhere.

44. In dealing with the issue of penetration, medical evidence may be helpful. You must consider the issue of penetration in light of the medical evidence to be a certainty free from doubt as opposed to a mere possibility, as suggested by the learned State Counsel to the doctor. In this regard, you must consider the absence of evidence of penetration on vaginal canal; and, the doctor's opinion that lacerations could occur outside the vagina as a result of the penis missing the vagina due to the physical posture that the man and the woman were in inside the taxi.

45. In considering 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.

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

47. 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
20 January 2012