IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 229 OF 2011

STATE

v

MOHAMMED HAKIK

Counsels : Mr. A. Singh for the State
 Ms. S. Jiuta for the Accused

Date of Trial : 26 March 2015 to 27 March2015
Date of Summing Up : 27 March2015
(Name of the victim is suppressed. She is referred to as FS)

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 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 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 counsel made submissions to you about the facts of this case. That is their duty as the Prosecution Counsel and the defence 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 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 the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.

12.	In accessing 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.	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 evidence –this case involved an alleged incident of rape. An incident of rape would certainly shock the conscience and feelings of our 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.

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. They are of course an important part of the case. The agreement of these facts has avoided the calling of number of witnesses and thereby saved a lot of court time.

15.	The agreed facts of this case are:

a. The accused in this case is Mohammed Hakik of Mulomulo, Nadi.
b. The victim in this case is FS of Mulomulo, Nadi.
c. The accused is in a de facto relationship with Gulshad Bano.
d. The accused is the step father of the victim.
e. The victim has a step brother and a step sister.
f. The victim was residing with her step father (accused) since the age of 3 years.
g. The accused has a son namely, Mohammed Fazil Yasin who resided with the victim in the year 2011 at Mulomulo, Nadi.
h. Medical report of FS.

16.	The charge against the accused is a charge of rape under Section 207(1) (2) (a)of the Crimes Decree No.44 of 2009. The particulars of the offence, as alleged by the prosecution, are: 

Count 1
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree, 2009.

Particulars of Offence

MOHAMMED HAKIK, between the 1st day of November 2011 and the 31st day of November 2011, at Nadi in the Western Division, penetrated his penis into the vagina of FS, without her consent.

Alternate Count
Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) of the Crimes Decree, 2009.

Particulars of Offence

MOHAMMED HAKIK, between the 1st day of November 2011 and the 31st day of November 2011, at Nadi in the Western Division, unlawfully and indecently assaulted FS, in that the said Mohammed Hakik penetrated the vulva of FS with his penis, without her consent.

17.	I will now deal with the elements of the offences. 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) states as follows:

A person rapes another person if:

(a)	The person has carnal knowledge with or of the other person without other person's consent; or
(b)	The person penetrates the vulva, vagina or anus of other person to any extent with a thing or a part of the person's body that is not a penis without other person's consent; or
(c)	The person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent.

18.	Carnal knowledge is to have sexual intercourse with penetration by the penis of a man to the vagina of a woman to any extent. So, that is rape under Section 207 (2) (a) of the Crimes Decree.

19.	Consent as defined by Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent. A woman under age of 13 years is considered by law as a person without necessary mental capacity to give consent. The girl in this case was 12 years of age and therefore, she did not have the capacity under the law to consent. So, the prosecution does not have to prove the absence of consent on the part of the girl because law says that she, in any event, cannot consent. 

20.	So, the elements of the offence in the 1st count are that the accused inserted his penis in to the vagina of the victim to some extent which means that the insertion of a penisfully into vagina is not necessary.

21.	I will now deal with the elements of the offence of Sexual Assault. The offence of Sexual assault is defined under Section 210 of the Crimes Decree:
A person commits Sexual Assault if:

(a)	Unlawfully and indecently;
(b)	Assaults another person.

22.	For the assault to be indecent it must be accompanied by a circumstance of indecency. Conduct is indecent when it is as such that ordinary people would so describe it, in light of prevailing standards of morality and, more specifically, in light of whether the victim has consented to the conduct in question. 

23.	Evidence that the accused has been identified by a witness as doing something must, when disputed by the accused, be approached with special caution because experience has demonstrated, even honest witnesses have given identification which has been proved to be unreliable. I give you this warning not because I have formed any view of the evidence, but the law requires that in every case where identification evidence is involved, that the warning be given. 

24.	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 and felt the offence being committed. In this case, for example, the victim was witness who offered direct evidence, if you believe her as to what she saw, heard and felt.

25.	Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, Medical Report is an example, if you believe that such a record was made. Then you can act on such evidence. You can take into account the contents of the document if you believe that contemporaneous recordings were made at the relevant time on the document upon examination of the victim.

26.	Expert evidence is also important to borne in mind. Usually, witnesses are not allowed to express opinions. They are allowed to give evidence on what they have seen, heard or felt by physical senses only, as described earlier. The only exception to this rule is the opinions of experts. Experts are those who are learned in a particular science, subject or a field with experience in the field. They can come as witnesses and make their opinions express on a particular fact to aid court and you to decide the issues/s before court on the basis of their learning, skill and experience.

27.	The doctor in this case, for example, came before court as an expert witness. The doctor, unlike any other witness, gives evidence and tells us his conclusion or opinion based on examination of the victim. That evidence is not accepted blindly. You will have to decide the issue of rape before you by yourself and you can make use of doctor's opinion if his reasons are convincing and acceptable to you; and, if such opinion is reached by considering all necessary matters that you think fit. In accepting doctor's opinion, you are bound to take into account the rest of the evidence in the case.

28.	In assessing evidence of witnesses you need to consider a series of tests. They are for examples:

Test of means of opportunity: That is whether the witness had opportunity to see, hear or feel what he/she is talking of in his/her evidence. Or whether the witness is talking of something out of pace mechanically created just out of a case against the other party.

Probability and Improbability: That is whether what the witness was talking about in his or her evidence is probable in the circumstances of the case. Or, whether what the witness talked about in his/her evidence is improbable given the circumstances of the case.

Belatedness: That is whether there is delay in making a prompt complaint to someone or to an authority or to police on the first available opportunity about the incident that was alleged to have occurred. If there is a delay that may give room to make-up a story, which in turn could affect reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. If there is a delay, you should look whether there is a reasonable explanation to such delay.

Spontaneity: This is another important factor that you should consider. That is whether a witness has behaved in a natural or rational way in the circumstances that he/she is talking of, whether he/she has shown spontaneous response as a sensible human being and acted accordingly as demanded by the occasion. 

Consistency: That is whether a witness telling a story on the same lines without variations and contradictions. You must see whether a witness is shown to have given a different version elsewhere. If so, what the witness has told court contradicts with his/her earlier version.

 You must consider whether such contradiction is material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. If it is shown to you that a witness has made a different statement or given a different version on some point, you must then consider whether such variation was due to loss of memory, faulty observation or due to some incapacitation of noticing such points given the mental status of the witness at a particular point of time or whether such variation has been created by the involvement of some another for example by a police officer in recording the statement where the witness is alleged to have given that version.

 You must remember that merely because there is a difference, a variation or a contradiction or an omission in the evidence on a particular point or points that would not make witness aliar. You must consider overall evidence of the witness, the demeanor, theway he/she faced the questions etc. in deciding on a witness's credibility. 

 You must also consider the issue of omission to mention something that was adverted to in evidence on a previous occasion on the same lines. You must consider whether such omission is material to affect credibility and weight of the evidence. If the omission is so grave, you may even consider that to be a contradiction so as to affect the credibility or weight of the evidence or both.

 In dealing with consistency you must see whether there is consistency per se and inter se that is whether the story is consistent within a witness himself or herself and whether the story is consistent between or among witnesses. In deciding that, you must bear in mind that the evidence comes from human beings. They cannot have photographic or videographic memory. All inherent weaknesses that you and I suffer, insofar as our memory is concerned, the memory of a witness also can be subject to same inherent weaknesses.

 Please remember that there is no rule in law that credibility is indivisible. Therefore, you are free to accept one part of a witness's evidence, if you are convinced beyond doubt and reject the rest as being unacceptable.

29.	You need to consider all those matters in evaluating the evidence of witnesses. You shall, of course, not limit to those alone and you are free to consider any other factors that you may think fit and proper to assess the evidence of a witness. I have given only a few illustrations to help what to look for to evaluate evidence.

30.	I will now deal with the summary of evidence in this case. 

31.	Prosecution called victim as the first witness. She was 12 years old at the time of the incident. She said that one day, her mum went to town. She was at home with the accused and his son. Mom asked her to clean the house and cook the dinner. Fazil wanted to sleep. She was asked to take and make him sleep. The accused came and asked her to go inside the blanket. Then accused started taking off her clothes. He also took his clothes off. Then he was sleeping on her. Then he put his private part on her private part. There was enough light inside the room. When she was shouting Fazil woke up. He asked the accused what are you doing? The accused said don't tell anyone. 

32.	When the mother came back Fazil told the mother. The private part of the accused is his penis. The incident happened in November 2011. She was born on 31.12.1998. She told the mother about the incident when she came back from the town. She said don't tell anyone. She was taken to a doctor by the police. She told the doctor what happened. She felt bad when the father was doing this to her. She told him not to do this. He did not say anything. He told her not to tell anyone. Apart from mother she informed an old i-taukeilady who is a neighbor. This was after 2 weeks. She went and reported to the police.

33.	Under cross examination she admitted that her mother was in a relationship with the accused for 2-3 years by that time. She admitted that her mother and the accused used to tell her to clean the house and cook the meals. Sometimes she didn't like what they told her. She was not schooling in 2011. She stayed at the house most of the time. She was not in a good relationship with the accused in 2011. She told other brother Rizwan about what happened. When she was going to town with the mother she did not go to report the matter to police. She admitted that the report was made one month later. If she screamed from the house the neighbor would hear that. Fazil went and told the neighbor. When it was suggested that alleged incident did not happen she said that he did it. 

34.	You watched her giving evidence in court. What was her demeanor like? How she react to being cross examined and re-examined? Was she evasive? How she conduct herself generally in Court? Was there any reason for her to make a false allegation. What is the relationship between her and the accused. How she conducted herself after the incident? Given the above, my directions on law, your life experiences and common sense, you should be able to decide whether witness's evidence, or part of a witness's evidence is reliable, and therefore to accept and whether witness's evidence, or part of evidence, is unreliable, and therefore to reject, in your deliberation. If you accept the evidence of the victim beyond reasonable doubt then you have to decide whether that evidence is sufficient to establish all elements of the charges.

35.	The second witness for the prosecution was the victim's step bother. He is staying with Veniana now at Navaka. He was staying in Mulomulo in 2011. He went to police to report father raped his sister. He saw this. When accused came home from harvesting cane he came and wanted to sleep with his sister. He got into the blanket and was sleeping with her. When he looked he was told to look other side. He was sleeping on the other bed. He only saw the blanket going up and down. Sister did not say anything. The accused came out of the blanket and went to shower. He was only with his pants. When the mother came he told the mother. She told him that he is lying. 

36.	Under cross examination he stated that other brothers and sisters have gone to the school at this time. He said that sister did lot of house work. The accused and sister did not have any problem. The accused used to slap him and sister when they did not follow what the accused said. He saw himself, his sister being raped. When Veniana took her to the doctor it was said. Sometimes sister was disobedient to the accused. One day mother asked sister to wash the dishes. She didn't do it. When accused came and asked her, sister said keep quiet I will do it. He admitted that he and sister went to the police station one month later.

37.	You watched him giving evidence in Court. What was his demeanor like? How he react to being cross examined and re-examined? Was he evasive? How he conduct himself generally in Court? Was there any reason for him to make a false allegation. What is the relationship between him and the accused. Given the above, my directions on law, your life experiences and common sense, you should be able to decide whether witness's evidence is confirming the evidence of the victim or creating a reasonable doubt the in the prosecution case. 

38.	The third witness for the prosecution was Veniana Mole. In 2011 she was residing in her farm in Mulomulo. Mother of the victim had told her about what her son had told her, what the father was doing to the step sister. Mother was staying with her at that time. This was told to her in November/December 2011. She told her to report the matter to the police. She accompanied them to the police station. The boy is residing with her now.

39.	Under cross examination she stated that before this incident she had known them. On the day they have asked her daughter to come and stay the night as they have no place to go. He did not know the accused before. She admitted that she is the one who went to report the matter to police. She went to report the matter as told by the mother.

40.	The fourth witness for the prosecution was the wife of the accused. She made the complaint as the son told her that father was sleeping with the sister. She questioned the victim about this. She said that father was sleeping with her. She asked her husband. He denied that. She informed this to an old i-Taukei lady, who came to Court today. She is still living with the accused.

41.	Under cross examination she admitted that she did not report about the incident as soon as she heard from the son. The victim was disobedient to the accused in 2011. She had reported the matter when her son told her. 

42.	These witnesses were called by the prosecution to establish that the complainant made a recent complaint. Such complaint is not evidence of the facts complained of and cannot be regarded as corroboration, but goes to the consistency of the conduct of the complainant with her evidence given at the trial. It is up to you to decide whether evidence of this witness is consistent with the evidence of the complainant or creating a reasonable doubt in the prosecution case. 

43.	The next witness for the prosecution was Doctor. He gave evidence on a report prepared by another doctor. Medical findings are that hymen open and not intact. This is due to blunt penetration. It could be caused by a penis. If the penis is rubbed on the top of the vagina slightest force could open the hymen. Based on the flexibility of the vagina there could be penetration more than once. He tendered the Medical report marked P1.

44.	Under cross examination he stated that hymen is slightly inside the vagina. If a man's penis is rubbed on 12 year old girl's vagina slightest penetration could cause the rupture of the hymen. With continuous rubbing for 5 minutes with slightest penetration will leave the hymen being open. 

45.	The Doctor is an independent witness.He had not examined the victim, but gave opinions on a report prepared by another doctor. Hymen was open and not intact. You have to decide whether that evidence is confirming the evidence of the victim or creating any reasonable doubt in the prosecution case.

46.	The next witness for the prosecution was DC Omendra Gupta. He is an officer with 10 years' experience. He is the investigating officer of this case. The report was received on 3.12.2011. The victim was examined by a doctor at the Nadi hospital. Then the statements were recorded. He had arrested the accused at his house in Mulomulo, Nadi same day. The accused was not assaulted at the time of arrest by him or the other officers. The accused was given his rights at the time of the arrest. He was caution interviewed on 3.12.2011. He was not assaulted, threatened or induced by him or any other officer. 

47.	DC Nitesh was the witnessing officer. The interview was in question and answer format in Hindi language. He made a translation. The accused was given his rights during the interview. He was given sufficient breaks and refreshments. At the conclusion he together with the witnessing officer and the accused signed the interview. Accused did not make any complaint at the conclusion. He identified and tendered the interview notes and translation marked P2 & P3. He read the content of P3 to the Court. He also tendered the birth certificate of the victim marked P4 and rough sketch plan marked P5. There were two beds close to each other. The incident had taken place on the 2nd bed. There was only one door and two windows. 

48.	Under cross examination he admitted that he was fully aware about the allegation before the interview. He denied assaulting the accused with a stick several times during the interview. He denied threatening the accused. The witnessing officer was present. He had signed the interview at the time it was conducted. He denied the answers recorded are not true answers. He denied that the accused denied the allegation against him.

49.	It is up to you to decide whether the accused made a statement under caution voluntarily to this witness. If you are sure that the caution interview statement was made freely and not as a result of threats, assault or inducements made to the accused by persons in authority then you could consider the facts in the statement as evidence. Then you will have to further decide whether facts in this caution interview statement are truthful. If you are sure that the facts in the caution interview are truthful then you can use those to consider whether the elements of the charges are proved by this statement. The admissions in the caution interview statements alone is sufficient to establish the charge provided you accept that caution interview statement was made voluntarily and the content is truthful. 

50.	The last witness for the prosecution was DC Nitesh. He is an officer with 10 years' experience. He is the witnessing officer in this case. The interview commenced on 3.12.2011 at the crime office. He was present throughout the interview. The accused was not assaulted, threatened or induced by him or any other officer prior to the interview. He was present throughout the interview on 4.12.2011. He, the accused and interviewing officer signed the interview. The accused was not forced to sign the interview. He identified P2 and P3 in Court. The accused did not make any complaint at the conclusion of the interview to him or any other officer.

51.	Under cross examination he denied that he was not present on 3.12.2011 for the interview. He also denied that on 4.12.2011 he only came to sign the interview. He denied that interviewing officer was assaulting the accused. 

52.	After the prosecution case was closed you heard me explaining the accused his rights in defence. 

53.	The accused gave evidence. He stated that in November 2011 he was harvesting cane. He was living in Mulomulo for his lifetime. He was with his wife and the kids. He had a relationship with the wife since 2008. The eldest child was the victim. She was not listening to anyone and not going to school for 2 years. She used to talk back to him and wife. He had slapped her once when she was not listening to him. In November 2011 they were not talking to each other. He was looking after the children same way.

54.	He did not have sexual intercourse with the victim. He did make the victim to remove her clothes. He had not put or insert his penis into victim's vagina at any time. He was beaten when the interview was taken. Gupta handcuffed him and beaten him with a piece of wood on his chest. When he was asked have you done it he said no.No one else was present in the interview. This allegation is made as the victim doesn't like him or the mother. 

55.	Under cross examination he said that he was looking after the victim very nicely. The victim filed a rape case as she doesn't like them. Both victim and Fazil they don't like him. He was interviewed by Gupta in Hindi. He understood the allegation against him. He answered the questions put to him by Gupta. Gupta was beating him and asking questions. He was beating him with a stick 1 ½ feet long and ½ inch width. He was hitting him hard and it was painful. He was crying out in pain. He is still having pain. He did not make a complaint to the Magistrate or the Judge when he was produced in Court. He did not lodge a police complaint when he was granted bail. He went for a medical check up to the hospital. He was checked by a doctor but no report was done. He only told his family members. But they did not make a report on behalf of him. He denied the allegation against him.

56.	You watched the accused giving evidence in court. What was his demeanor like? How he react to being cross examined and re-examined? Was he evasive? How he conduct himself generally in Court? His position taken up in evidence is different from position he took up in his caution interview statement.It is up to you to decide whether you could accept his version and his version is sufficient to establish a reasonable doubt in the prosecution case. If you accept his version accused should be discharged. Even if you reject his version still the prosecution should prove its case beyond reasonable doubt. 

57.	I must remind you that when an accused person has given evidence he assumes no onus of proof. That 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. 

58.	You will generally find that an accused gives an innocent explanation and one of the three situations then arises: 

(i)	You may believe him and, if you believe him, then your opinion must be Not Guilty. He did not commit the offence.

(ii)	Alternatively without necessarily believing him you may say 'well that might be true'. If that is so, it means there is reasonable doubt in your minds and so again your opinion must be Not Guilty. 

(iii)	The third possibility is that you reject his evidence as being untrue. That does not mean that he is automatically guilty of the offence. The situation then would be the same as if he had not given any evidence at all. He would not have discredited the evidence of the prosecution witnesses in any way. If prosecution evidence proves that he committed the offence then the proper opinion would be Guilty. 

59.	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 yourselves of all that evidence and form your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence.

60.	Please remember, there is no rule for you to look for corroboration of the victim's story to bring home an opinion of guilty in a rape case. The case can stand or fall on the testimony of the victim depending on how you are going to look at her evidence. You may, however, consider whether there are items of evidence to support the victim's evidence if you think that it is safe to look for such supporting evidence. Corroboration is, therefore, to have some independent evidence to support the victim's story of rape.

61.	Remember, the burden to prove the accused's guilt beyond reasonable doubt lies with the prosecution throughout the trial, and never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. 

62.	If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of accused's guilt of the 1stcharge you must find him guilty for the charge. If you accept the prosecution evidence and not sure whether there is penetration to some extent to the vagina you could find the accused Guilty for the alternative count. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of accused's guilt, you must find him not guilty for any charge. 

63.	Your possible opinions are as follows:

 Charge of Rape Accused Guilty or Not Guilty
If Not Guilty for Rape
Alternative count of Sexual Assault Accused Guilty or Not Guilty

64.	You may now retire to deliberate on the case, and once you have reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

65.	Any re-directions?

Sudharshana De Silva
JUDGE

At Lautoka
27th March 2015

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