IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 143 OF 2011

BETWEEN:

STATE

AND :

JANEND KUMAR

Counsel : Ms. J. Fatiaki for State
Mr. Iqbal Khan for the Accused 

Date of Hearing : 18th - 20th of January 2016
Date of Closing Submissions : 21st of January 2016
Date of Summing Up : 22nd of January 2016

SUMMING UP

Madam Assessors and Gentleman Assessor. 

1.	The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. You will then retire to consider your respective opinions. 

2.	Our functions are different. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law. 

3.	You are to determine the facts of the case, based on the evidence that has been placed before you in this court room. That involves deciding what evidence you accept or refuse. You will then apply the law, as I shall explain it to you, to the facts as you find them to be, and in that way arrive at your opinion. 

4.	I may comment on the facts if I think it will assist you when considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the facts. Hence, it is entirely upon you to accept or disregard it unless it coincides with your own independent opinion. I say so because you are the sole judges of the facts. 

5.	You must reach your opinion on evidence, and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box, documents and other materials received as exhibits and agreed fact. This summing up, statements, arguments, questions and comments made by the counsel of the parties are not evidence. The purpose of the opening address by the learned counsel for the prosecution is to outline the nature of evidence intended to be put before you. The closing addresses of the counsel of the prosecution and the defence are not evidence either. They are their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you. 

6.	If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinions from your consideration. You must have regard only to the testimony, agreed facts and the exhibits put before you in this courtroom during the course of this trial. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach your own conclusion or form your own opinion. You are required to give merely your opinion but not the reasons for your opinion. Your opinion need not be unanimous. I must advice you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinions when deliver my judgment. 

7.	Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately; deciding the facts solely upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action. 

8.	Matters which will concern you are the credibility of the witnesses, and the reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and is correctly recalling the facts about which he or she has testified. 

9.	You have seen how the witnesses presented in the witness box when answering questions. Bear in mind that many witnesses are not used to giving evidence and may find the different environment distracting. You should take into account consideration such as, the likelihood of the witness's account, whether the evidence of a particular witness seem reliable when compared to other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, the opportunity, the witness had to see, hear, or know the things that the testified about. Another point you may consider is whether the witness said something different at an earlier time? These are only few general considerations which I assume will assist you in your deliberations. It is, as I have said, up to you to assess the evidence and decide what weight, if any, you give to a witness's evidence or to an exhibit. 

Burden and Standard of Proof 
10.	I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused is guilty for the offence based on the evidence presented during the course of this hearing. 

11.	The burden of proof of the charge against the accused person is on the prosecution. It is because the accused person is presumed to be innocent until he is proven guilty. Accordingly, the burden of proof rest on the prosecution throughout the trial and it never shifts to the accused person. In other words there is no burden on the accused person to prove his innocence, as his innocence is presumed by law. 

12.	The standard of proof in criminal trial is "proof beyond reasonable doubt". It means that you must be satisfied in your mind that you are sure of the accused person's guilt. If there is a riddle in your mind as to the guilt of the accused person after deliberating facts based on the evidence presented, that means the prosecution has failed to satisfy you the guilt of the accused person beyond reasonable doubt. If you found any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person. 

Information 

13.	The accused is being charged with one count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree. The particulars of the offence are that;

"Janend Kumar on the 14th day of June 2011 at Tute's Sea Breeze Hotel in Sigatoka in the Western Division, had carnal knowledge with a girl namely Payal Parshna Kumar without her consent" 

14.	Section 207 (1) and (2) (a) of the Crimes Decree states that;

Any person who rapes another person commits an indictable offence,

A person rapes another person if-

a) The person has carnal knowledge with or of the other person without the other person's consent" 

15.	Accordingly, the main elements of the offence of rape are that;

iii.	 The Accused, 
iv.	 Inserted his penis into the vagina of the victim, 
iii. 	Without the consent of the victim, 

16.	At this point I must emphasis you that the offences of sexual nature do not require evidence of corroboration. 

17.	I know kindly request you to draw your attention to the agreed facts, which are before you. I do not wish to reproduce them in my summing up. You are allowed to consider these agreed facts as proven facts beyond reasonable doubt against the accused by the prosecution. 

18.	I now draw your attention to summarise the evidence presented by the prosecution and the defence during the hearing.

19.	The first witness of the prosecution is Dr. Vivek Arnold Lal. He is a medical officer who is currently working at the CWM hospital in Suva. He was the medical officer at the Sigatoka Hospital in June 2011. He stated that he examined Payal Prashna Kumar on 18th of June 2011 at the Sigatoka Hospital. She looked worried and was crying when he conducted this examination. Dr. Lal explained his medical finding which he has reported in his medical report. According to his finding, he found minor lacerations on left minor labia and hymen perforated. He explained his findings in simple terms. He recommended that the victim should go through counselling and rehabilitation to have a normal relationship in her life. During his cross examination, Dr. Lal stated that he had already done 10 to 15 cases of similar nature at the time of conducting this medical examination. He further stated that the perforated could have been resulted from either a forceful sexual intercourse or from a normal sexual intercourse. He went on further and stated that the hymen could also get perforated without sexual intercourse. 

20.	The second witness of the prosecution is Payal Prashna Kumar. She is the victim of this incident. She stated in her evidence that she met the accused at the back of R.B.Patel building in the evening of 14th of June 2011. She came there after her work. She met him around 5.30 p.m. and she got into his car and seated at the back passenger seat. The accused has told her that he will first go to the garage, but he never went there. Instead he came and parked at Tute's sea breeze hotel. First he got off the car and went somewhere. He then came back and asked her to get off. He then took her to the motel. He opened the door while undressing his cloths. He forcefully took her clothes off. She tried to save her. She told him that she is his daughter and do not do this. But he went on with his act and raped her. He sucked her breast and inserted his penis into her vagina. 

21.	Subsequent to this incident which took place at the motel, he dropped her at her house at Cuvutop. On their way home, the accused stopped at the service station of Cuvu. The accused is her uncle as he is the elder brother of her father, who also lived in the same compound as of her. When she came home in his car, she noticed that her grandmother and cousins were staying outside. 

22.	She told her mother about this incident and what her uncle did to her in the night of 15th of June 2011. In her evidence she first stated that she told her mother on the same night, but later found that it was on the following night of 15th of June. Her grandparents, the accused and his wife then came to her house and tried to settle the matter. The wife of the accused offered her $ 28,000 if she settled this issue and will help her to get marry. She then reported the matter to the police with her parent on 18th of June 2011. 

23.	She stated in her cross examination that her parent did not ask any money from her uncle who lives in New Zealand to settle this matter. Her mother has called the uncle who lives in New Zealand and asked him to come to Fiji and sort out this issue. She denied that her parent demanded $45000 from him to settle this matter. Payal stated that the accused denied the allegation when he was confronted. Payal did not see anyone at the motel when she get back to the car. She did not want to tell anyone at the service station as none of them are her close family. She further stated that she did not intend to withdraw this allegation she made against her uncle. Her family moved to another place after this incident. 

24.	The third prosecution witness is Rita Rai, who is the mother of the victim. She stated in her evidence that her daughter, Payal told her in the night of 15th of June 2011 that her uncle, the accused took her to a hotel and raped her on 14th of June 2011 while she was retiring home with him after work. Mrs. Rai first stated that Payal volunteered of telling the story, but later stated that she couldn't properly recall as whether she asked her why she looked depressed before she confided the incident to her. She then called the parents of the accused and his wife and told this incident. Mrs. Rai further stated that they then came and tried to settle the matter. The accused came with a piece of wood and threatened them that he will kill them and burn the house. 

25.	In her cross examination, Mrs. Rai admitted that she was inside the court room and heard the evidence given by her daughter. She said that she couldn't recall that whether she called the brother of the accused who lives in New Zealand and asked him to come. However, she stated that they had a discussion with him over this issue, but denied that she or her husband demanded money from him to settle this issue. She further denied that there was a dog around the compound who had once bit her husband and brother-in-law. 

26.	The fourth witness of the prosecution is Mr.Rajesh Kumar, who is the father of the victim. The accused is the eldest brother of him. He stated in his evidence that his wife informed him about this matter in the night of 15th of June 2011. She was crying at that time. They then called the parent of him and informed them about this allegation. His parent and the accused with his wife came to their place. His mother confronted the accused about this allegation and he denied it. On the next day they asked them to settle the matter. They offered them money which he denied. Mr. Rajesh Kumar stated that they were prevented by his extended family to going and report the matter. They told him that they could discuss the issue and do not report it to the police. Mr. Kumar stated the accused is his eldest brother and he was respected in the family. 

27.	During the cross examination, Mr. Rajesh Kumar stated that there was a dog at his compound but he has never being beaten by that dog. His son was once beaten by a dog, but it was another one. He couldn't properly recall when he made his statement to the police. He recalls that there was a police officer of Indian origin who assisted him translating when his statement was recorded. 

28.	He couldn't recall that whether his wife called his brother who lives in New Zealand, but admitted that he came back to Fiji and discussed with them about this issue. However, Mr. Rajesh Kumar denied that he or his wife demanded $ 45,000 from his brother to settle this matter. Mr. Rajesh Kumar stated that the accused offered him money to settle the issue. The wife of the accused offered them $ 28,000 in the presence of everyone as they also cried and wanted to have the matter settled. 

29.	At the conclusion of the prosecution case, the accused person was explained about his rights in defence. He advised the court that he will give evidence on oath and will call three more witnesses for the defence.

30.	The accused in his evidence stated that he came to Sigatoka town around 4.30 pm on the 14th of June 2011and waited there till 5.20pm. When he came to his car, he found Payal was waiting near the car. He then got into his car and Payal too got into and seated on the back passenger seat. He then drew the car to the service station at Cuvu and from there straight to his house. He reached home around 5.45 to 5.50 p.m. He saw his wife was at the garden and his parents were sitting in the porch when he reached home. Paypal got down from the car and went to her house. He straight away went to his room. 

31.	The accused came to know about this allegation in the night of 15th of June 2011. His wife got a call from Payal's mother. His wife then asked him to go to their house with his parent. He further said that he never spoke to Payal or her parent. He admitted that he had in his hand a stick when he went to see Payal's house in the night of 15th of June 2011. He explained that he took a stick because of the dog. 

32.	The accused denied the allegation that he took Payal to the Tute's motel and raped her. He had called the Sigatoka Police station about the threats that he got from Payal's father. He was referred to Cuvu police post by the Sigatoka Police Station. He then took an officer from the police post to his house. The police officer recorded the statement of his family members.

33.	The Sigatoka Police asked him to come to the police station on the 18th of June 2011. He was locked in the cell in the police station when he visited there. He was taken to an identification parade on the following day, where a lady from a hotel somewhere came and made the identification. He was in a room with about 12 or 13 men when the lady came in. The police were standing outside. The lady first pointed out his brother-in-law. The police took the lady out. The lady came again and pointed his brother. The Lady was called back by the police once again. She came again into the room and pointed at him. Subsequent to the Identification Parade, he was taken back for the caution interview. The accused tendered a copy of his caution interview as an exhibit. He denied that he offered money to the parent of Payal to settle the matter. 

34.	During the cross examination, the accused stated that they were a close family knit and enjoyed a good relationship with Payal's family until this incident broke out. He is the eldest of the brothers and respected member in the family circle. He stated that he was not taking Payal home every day and he only did it once a week or so. He wanted to go to the garage on his way, but decided to go home as Payal was in the car. His car was tinted from the side. He travels from Cuvutop to Sigatoka frequently and knows the place of Tute's seabreeze motel. He further stated that Payal grown up around him and considered her as a daughter. She is an honest person. 

35.	The Accused considered that the rape is a serious matter and could not talk easily. He stated that he was aware of Payal's health problem that she had around 2008. He further stated that his brothers who took part in the identification parade look alike him. Three of his brothers and one brother-in-law were in the identification parade with him. 

36.	The next witness of the defence is Cpl Ashwin Chand from Sigatoka Police Station. He stated in his evidence that the accused came to the police station and reported that Rajesh Kumar and his family members were causing him trouble and threatening him.
 
37.	The third witness of the defence is Sanjesh Kumar, one of the brothers of the accused. He stated that he was cleaning his car at the compound when the accused came with Payal in the evening of 14th of June 2011. He was confident that the time was 5.45 as he saw the time. Payal got off from the car and just smiled with him and went to her house. It was not a laugh or big smile. 

38.	Mr. Sanjesh Kumar was one the three brothers of the accused who stood with others at the Identification Parade. He stated that some police officers were inside while a lady came and identified. She first identified his brother-in-law, but the police said it was a wrong person. He heard the police was telling the lady that it was the wrong person. She then pointed him and the Police once again told her it was the wrong person. The lady came again and pointed the accused. He stated that he did not take any steps to report this incident to the police until he gave evidence in court in this regard. 

39.	The last witness of the defence is Mr. Prem Kumar. He is also one of the brothers of the accused, who lives in New Zealand. He stated in his evidence that the mother of Payal called him and told him about this incident on 17th of June 2011. She asked him to come back to Fiji. He then came back to Fiji on the same day. He stayed at his parent's place and talked to the accused. He then went to see Payal's parent at about 10 to 10.30 a.m. on the following day, that was 18th of June 2011. He left them around 11a.m. Payal's father demanded him to pay $ 45,000 if not he will report this matter to the police. Mr. Prem Kumar stated that he did not inform this demand to the police. 

40.	Mr. Prem Kumar was one of the three brothers of the accused who stood for the identification parade. He stated that apart from the men who took part in the identification parade and the lady, no police officers stayed inside the room. 

41.	I have summarised the evidence presented during the course of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence and recall yourselves on all of them. What I did only was to draw your attention to the main items of evidence and help you in recalling yourselves of the evidence.

42.	The prosecution presented evidence that the accused picked the victim, Payal at Sigatoka town and then took her to Tute's Seabreeze Motel in the evening of 14th of June 2011. He then took her into a room and forcefully removed her cloths while he too was undressing himself. He then sucked her breast and then inserted his penis into her vagina. The accused then took Payal back her house. Payal told her mother about this incident in the night of 15th of June 2011.Her parent then called the grand parent of Payal, and the wife of the accused and told them about this allegation. They came to her house together with the accused. The accused denied the allegation when he was confronted by his mother in the presence of others. The wife of the accused then offered Payal's family a sum of $ 28,000 if she settled the matter. Payal's parent refused the offer. On 18th of June 2011 Payal went to police with her parent and reported the incident.

43.	The accused has denied the allegation of rape. However, he admitted that he picked Payal at the back of R.B.Patel Sigatoka on the 14th of June 2011 and then drew back home. He went to service station at Cuvu on his way. 

44.	One or more of you may have assumptions as to what constitutes rape, what kind of person may be the victim of rape, what kind of person may be the rapist, or what a person who is being or has been raped will do or say. Though such assumptions are natural in ordinary life, it is important that you must leave behind such assumptions as there is no stereotype of circumstances for a rape or a rapist or a victim of rape. Offences of this nature can take place in any circumstance between any kind of persons, who act in a variety of ways. You must approach the case dispassionately, putting aside any view as to what you might or might not have expected to hear, and make your judgment strictly on the evidence that you have heard from the witnesses and the exhibits during the course the hearing. Any person who has been raped must have undergone trauma. It is impossible to predict how the victim react, either on the period following the incident or when speaking publicly about it either in court or in the police station. The victim's reaction to the alleged incident and subsequent behaviors could depend on various factors, such as the victim's relationship with the perpetrator, the position held by the perpetrator in her life and her social surroundings, nature of her character, circumstances of the offending environment, etc. Those who have been victims of rape react differently. Some may display obvious signs of distress, others may not. The reason is that every person has his or her own way of coping with such incidents. 

45.	Ladies and Gentlemen, you might recall that the learned counsel for the accused cross examined the victim and her parent about the omissions in their statements made to the police with the evidence given in court. It is obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not accept every detail to be the same from one account to the next. If there is an inconsistency, it is necessary to decide firstly, whether it is significant and whether it affects adversely to the reliability and credibility of the issue that you are considering. If it is significant, you will next need to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, you may then conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for you to decide as to what extent that influence your judgment of the reliability of such witness. 

46.	You observed and witnessed that all the witnesses gave evidence in court. It is your duty as judges of facts to consider the demeanour of the witnesses, how they react to being cross examined and re-examined, whether they were evasive, in order to decide the credibility of the witness and the evidence. You should then consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness, not only with his/her evidence, but also with other evidence presented in the case. It will assist you in assessing the evidence presented in the case and forming your decision to accept or refuse the evidence or witnesses or part of them. 

47.	You have heard the evidence presented by the accused, where he denied this allegation. If you accepted the version of the accused person that he did not commit this offence, then the case of the prosecution fails. You must then acquit the accused from this charge.

48.	If you neither believe nor disbelieve the version of the accused, yet, it creates a reasonable doubt in your mind about the prosecution case. You must then acquit the accused from this charge. 

49.	Even if you reject the version of the accused person that does not mean that the prosecution has established that the accused is guilty for this offence. Still you have to satisfy that the prosecution has established on its own evidence beyond reasonable doubt that the accused has committed this offence as charged in the information. 

50.	Upon consideration of all evidence, if you believe that the count of rape is proved beyond reasonable doubt, you can find the accused is guilty of the charge. If you believe that that charge is not proved beyond reasonable doubt, then you must find the accused not guilty. 

51.	Madam and gentleman assessors, I now conclude my summing up. It is time for you to retire and deliberate in order to form your individual opinions on the charge against the accused person. You will be asked individually for your opinion and are not required to give reasons for your opinion. Once you have reached your opinion, you may please inform the clerks, so that the court could be reconvened. 

52.	Learned counsel of the prosecution and the accused, do you have any redirections to the assessors? 

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
 22nd of January 2016 

Solicitors : Office of the Director of Public Prosecutions 
Iqbal Khan & Associates