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

CRIMINAL CASE NO: HAC. 196 of 2013

STATE

V

LOG NANDAN GOUNDAR

Counsel : Ms. S. Puamau for State
 Ms.V. Ravono for the Accused
Dates of Hearing : 11th April – 13thApril 2016
Date of Summing Up: 14thApril 2016

SUMMING UP

Madam and gentleman assessors;
It is now my duty to sum up the case to you.

1.	I will now direct you on the law that applies in this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty. However, if I express my opinion on the evidence or if I appear to do so, you are not bound accept such opinion. You should ignore any opinion of mine on the facts of this case unless it coincides with your own reasoning. You are the judges of facts.
 
2.	Evidence is what the witnesses said from the witness box in this court room, the admitted facts and the exhibits tendered in this case. Your opinion should be based only on the evidence presented inside this court room. If you have heard, read or otherwise come to know anything about this case outside this court room, you must completely disregard such information.
3.	You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. You must approach the evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feelings of sympathy for or prejudice against, the accused or anyone else. No such emotion should influence your decision.

4.	A few things you heard inside this court room are not evidence. This summing up is not evidence. The arguments, questions and comments by the lawyers for the prosecution and the defence are not evidence. A suggestion made by a lawyer during the cross examination of a witness is not evidence unless the witness accepted that suggestion. You heard the opening address and you heard the closing addresses. Those arguments and comments made by lawyers in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only to the extent you would consider appropriate.

5.	Please remember that I will not be reproducing the entire evidence of the case in this summing up. I would only refer to the evidence which I consider important to explain the case and the applicable legal principles. If I do not refer to certain evidence which you consider as important, you should still consider that evidence and give it such weight you may think fit.

6.	You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court; how they conducted themselves in the witness box; how they answered the questions during examination-in-chief, cross-examination and re-examination. Applying your day to day life experience and your common sense as representatives of the society, you should decide whether you can believe what each witness said in court. You may decide that the entire evidence of a particular witness can be believed; or you may decide to believe only a part of the evidence and reject the other part; or you may reject the entire evidence of a witness if you decide that the entire evidence of that particular witness is not capable of being believed.

7.	When you assess the testimony of each witness, you should bear in mind that witnesses may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment.

8.	In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence or whether he/she had previously made a statement which conflicts with the evidence given in this court. You have to bear in mind that a previous statement made out of court is not evidence except for those parts that are put to a witness as inconsistent versions.

9.	Obviously, you may have a difficulty in believing someone who is not consistent. In dealing with inconsistencies, first you have to be satisfied that in fact there is an inconsistency. If you are satisfied that there is an inconsistency, then you should consider whether that inconsistency is material and relevant or insignificant and irrelevant. If you find the inconsistency to be material and relevant, then you must consider whether there is any explanation given by the witness in question with regard to the inconsistency. If there is no such explanation or if you are not satisfied with the explanation, again you have two options. You may either conclude that that particular witness is generally not to be relied upon or you may decide to disregard only part of his/her evidence which you consider unreliable.

10.	On the other hand, if you consider the inconsistencies to be insignificant and irrelevant, or if you are satisfied with the explanation given, then you may consider such witness as a reliable witness notwithstanding the inconsistency.

11.	You may also consider the ability and the opportunity each witness had, to see, hear or perceive in any other way what he/she said in evidence. You may ask yourself whether the evidence of a particular witness seem reliable when compared with other evidence you accept. These are only examples. It is up to you how you assess the evidence and what weight you give to a witness' testimony or to an exhibit.

12.	Experience has shown that victims of sexual offences may react in different ways to what they went through. Some, in distress or anger may complain to the first person they see. Some, due to shame, fear, shock or confusion may not complain for some time or may not complain at all. A victim's reluctance to complain could also be due to shame coupled with the cultural taboos existing in the society in talking about matters of sexual nature.A late complaint does not necessarily signify a false complaint and on the other hand an immediate complaint does not necessarily demonstrate a true complaint. 

13.	Based on the evidence, you decide what facts are proved and what inferences you can properly draw from those facts. What a witness told you about what he/she saw or heard and the exhibits tendered may directly prove certain facts. In addition to those facts you would consider as directly proved, you may also draw inferences from those facts. For example, when you walk out of this court room, if you see rain water around and it was not raining when you came inside, even though you did not see, you can draw the reasonable inference that it had rained while you were inside the court room. Bear in mind that the inferences you draw should be based on facts proved by the evidence and you may only draw reasonable inferences. You should then apply the law as per my directions to those facts and inferences, to form your opinion as to whether the accused is guilty or not guilty.

14.	You are not required to decide every point which has been raised by the lawyers in this case. You should only deal with the offence the accused is charged with and matters that will enable you to decide whether or not the charge has been proved.

15.	When I say 'proved', as a matter of law you should remember that the burden of proof always lies on the prosecution. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. Under our criminal justice system, an accused person is presumed to be innocent until proven guilty.

16.	The next question is; what is the standard of proof or to what extent the prosecution should prove the guilt of an accused? The standard of proof in criminal trials is one of proof beyond reasonable doubt. You must be sure of the accused person's guilt.

17.	A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. Therefore, if you have a reasonable doubt in respect of any element of the offence the accused is charged with, as to whether the prosecution has proved that element, then you must find the accused not guilty. However, if you find that the prosecution has proved all the elements of the offence beyond reasonable doubt, you should find the accused guilty. I will explain you the elements of the offences in a short while.

18.	You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion where all three of you agree on whether the accused is guilty or not guilty; but it is not necessary. May I also inform you that, according to our law, I am not bound to conform to your opinion and the final decision on the facts rests with me. But, your opinion as representatives of the society will assist me immensely to arrive at my final decision.

19.	Let us now look at the Information. DPP has charged the accused for the following offence;

Statement of offence
Rape: Contrary to Section149 and Section 150 of the Penal Code, Cap. 17 

Particulars of offence
LOG NANDAN GOUNDAR between the 1stday of June 2008 and 30th day of June 2008, at COLO-I-SUVA in the CENTRAL DIVISION, had unlawful carnal knowledge of LOSENA VOKABI, without her consent.

20.	You have the admitted facts before you. Among others, it is an admitted fact (No.10) that Shalendra Dutt and the accused picked up an i-Taukei female and then had driven to the Colo-i-Suva Forest Park.

21.	To prove the offence of rape, the prosecution must prove the following elements beyond reasonable doubt;

a)	the accused,

b)	had unlawful carnal knowledge of LOSENA VOKABI

c)	without her consent,

d)	accused- knew or believed that she was not consenting or 

was reckless as to whether or not she was consenting

22.	The first element of the offence is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.

23.	Second element is having unlawful carnal knowledge of the complainant, Losena Vokabi. Carnal knowledge in the context of this case is, penetrating the vagina of the complainant by the accused with his penis. The law states that this element is complete on penetration to any extent and therefore, it is not necessary to have evidence of full penetration or ejaculation. A slightest penetration is sufficient to satisfy this element.

24.	With regard to the element on consent, not only that the prosecution should prove that the accused had carnal knowledge of the complainant without her consent, but the prosecution should also prove that the accused knew that she did not consent to the act or that the accused was reckless as to whether or not she was consenting.

25.	What is meant by 'reckless as to whether or not she was consenting'? If the accused was aware of the risk that the complainant may not be consenting for him to insert his penis into her vagina and having regard to those circumstances known to him it was unjustifiable for him to take the risk and penetrate her vagina with his penis, you may find that the accused was reckless as to whether or not she was not consenting. Simply put, you have to see whether the accused did not care whether she was consenting or not.

26.	You should also bear in mind that consent means consent freely and voluntarily given by a person with the necessary mental capacity to give consent. The fact that there was no physical resistance alone shall not constitute consent. A person's consent to an act is not freely and voluntarily given if it is obtained under the following circumstances;

a)	by force; or

b)	by means of threats or intimidation of any kind; or

c)	by fear of bodily harm.

27.	If you are satisfied beyond reasonable doubt that the prosecution has proved all the elements explained above, then you must find the accused guilty of rape. If you have a reasonable doubt with regard to any one of those elements, you should find the accused not guilty.

Case for the prosecution

28.	First prosecution witness was Losena Vokabi who is 32 years old. She said, on one night in June 2008, around 11.00pm she went to the Valelevu Police Station to ask for help as a man was following her when she was at MH Valelevu. She spoke to two officers who were there inside a police vehicle at the back of the police station and told them her problem. Then the two officers told her to get inside the vehicle and they went to MH Valelevu in search of the man who chased her. They could not find him. Then on her request, the two officers dropped her and three of her friends who were picked up on the way, near her house at Delaitokatoka. She said the two police officers who dropped her home came back in the police vehicle half an hour later and told her to come with them as they have found the man who followed her in MH.

29.	She got into the vehicle under the impression that she will be taken to the Valelevu Police Station. But she was taken to Colo-i-Suva Forest Park. The vehicle was stopped near Colo-i-Suva pool. Then the police officer who was seated at the back seat with her asked her to have sex with him. She said 'No'. This conversation took place while she was standing with the said police officer outside the police vehicle. She said, when she said 'no'; that police officer pulled down her pants, he put on a condom, inserted his penis into her vagina, and they had sex. When the officer pulled down her pants, she told him to stop as she was having her menses at that time. She said she could not escape because it was dark. She said she was crying and she was nervous when this happened. After that she was dropped at her home.

30.	She said she lodged a complaint regarding the incident at Valelevu Police Station on 19/06/2008. She said it took some time for her to report because the man she had sex with threatened her and because she was ashamed. She said she did not complain until her brother asked her about the incident. The brother had come to know that a security guard at Colo-i-Suva had lodged a complaint about a police vehicle found at Colo-i-Suva. When the police officers inquired from her regarding that matter, she told the police that she had sex with one of them that night. She said she did not want to have sex that night.

31.	During cross examination she admitted that she had given 6 statements to the police regarding this incident because the police officers kept on recording statements from her. When it was suggested to her that she should have remembered everything when she gave the 1st statement if the allegation of rape is true, she said it was disgusting and it took a long time to recall. She said it was not her fault that several statements were recorded from her over a period of one year, and the police is responsible for that. She could remember that the incident happened in June 2008, but could not remember the exact date. She denied the suggestion that she went to the back of the police station without going inside, because there was no complain to lodge and she was just looking for a man for the night.

32.	She said she was not scared to get into the police vehicle when it came back for her with two men because they were police officers. She was asked whether she started to complain when she realised that the vehicle was not going to the police station and she said 'yes'. She said she asked them in a low tone where they are taking her and the driver could also hear her. She said the vehicle stopped near the sign board to the pool at Colo-i-Suva. She said the man who had sex with her asked her whether he can have sex with her when they were still inside the vehicle. It was pointed out to her that she said during examination in chief that this conversation took place outside the vehicle. Then she said what she said in morning (during examination in chief) is true. She said after the vehicle stopped at Colo-i-Suva the accused got off first. She followed him and got off from the same door with the intention of running away. Then she was shown her statement made on 19/08/2008 where she had said she got off from the right side and the police officer from the left side of the vehicle. She then said what is written in the statement is correct. She also admitted that the accused got hold of her hand when they got off the vehicle and to do that the accused had to come around the vehicle. When it was suggested then, that it was an opportunity for her to escape if she wanted, she said she couldn't because it was dark and there were no houses nearby. She admitted that she undertook to guide the two police officers out of the park when the security officer sat Colo-i-Suva offered their assistance to show the way out.

33.	She said she tried to run away and then realised it was too dark. She said she did not struggle, did not cry for help or scream because she was scared of the two men and because it was dark. She said the driver of the vehicle was watching them from the window. She did not complain to the driver. She said she did not complain to the security officers because the police officer had threatened her by that time. She admitted that she complained about the incident on 19/08/2008 which was about 2½ months after the incident.

34.	During the re-examination, she said, she had seen the two police officers at the police station before the incident.

35.	Second prosecution witness was Alekisio Lawakeli. In 2008, he was based at the Ethical Standard Division at the police headquarters. A complaint was received by his Division that there is a delay in the investigation on this matter. He was the officer assigned to investigate. He said he believes that the complaint was lodged on 19/06/08. He said the reason for having to record 6 statements from Ms. Vokabi was to clarify issues in his investigation after he took over. He tendered the accused's charge statement as PE01 and the typed copy as PE02. He identified the accused as Log Nandan Goundar. Perusing the summary of facts he had prepared for this case which states that the matter was first reported to police on 19/08/08, he said the date can be either 19/06/08 or 19/08/08. He was also asked to read certain findings he had noted in that summary of facts dated 08/09/08. Defence tendered this document as DE01. In re-examination, he said the investigation continued even after DE01 was prepared.

36.	Third and the final witness for the prosecution was Shalendra Dutt. He said he was a police officer in 2008 serving at Valelevu Police Station. On 08/06/08, he was the driver of the police vehicle No. 246. When he was resting in his vehicle around midnight, the accused joined him. He said the accused told him that he wants to have sex with a girl. After some time, a girl came and spoke to the accused. He did not pay attention to their conversation. Then the accused told him that they should go and assist the girl. He ultimately took the accused, the girl, 3 other males and two female police officers to Delaitokatoka. He dropped the 4 civilians at Delaitokatoka and came back to the police station and dropped the two female officers. Then the accused informed the Unit I/C that he is going to Sakoca to check on a bench warrantee and they left the station. He said they did not go to Sakoca but went to pick the same girl from Delaitokatoka on the request of the accused. He said the girl got into the vehicle and sat on the back seat. Then the accused also went and sat on the back seat and told him to go to Colo-i-Suva Forest Park. He said there was no official reason to go there that night. When he stopped the vehicle, the girl and the accused got off and went to the back of the vehicle. He put his seat down and continued to rest and he does not know what happened between the two at the back. When the accused and the girl got back inside the vehicle, he drove the vehicle towards the entrance of the park. Two security officers got into the vehicle to show him the way out of the park as the entrance was closed by that time. After a while, the security officers told him that the girl knows the way out from the park and therefore they got down from the vehicle. Thereafter, he dropped the girl at her place.

37.	On their way back, upon his inquiry the accused told him that he had sex with the girl. When he again asked whether the girl liked it, accused told him that he does not know. He said the name of the female passenger who was at the back seat is Losena and she is the same person who testified first in this trial.

38.	He said he was initially charged along with the accused but he was given immunity on 07/04/16. A copy of the immunity letter was tendered as PE03.

39.	During cross examination, he said the girl did not protest or raise any objection when the accused sat with her at the back seat when they picked her from Delaitokatoka. He said, on their way the girl and the accused were talking very softly, and he did not hear the girl complain that the vehicle was going the wrong way. He said when he stopped the vehicle at Colo-i-Suva, the girl and the accused got off from their respective sides. He said he did not hear the girl complain or refuse to get down from the vehicle. He did not hear the girl scream or yell. She did not complain to him about anything or about being raped by the accused. He did not see the girl run away or trying to run away, at any time.

Case for the Defence

40.	At the end of the prosecution case you heard me explain several options to the accused. He had those options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to call a witness.

41.	Usaia Tekuku who is employed as a watchman at Forestry gave evidence for the defence accordingly. He said he was a security officer at Colo-i-Suva in June 2008. On 08/06/08 he saw a police vehicle going inside the park and then the vehicle coming back. This was during night time. By the time the vehicle came back, the gate was locked. He noticed that it was a police vehicle when he went near the vehicle with his colleague Tomasi as the vehicle came back near the gate. There were two men inside the vehicle and with his torchlight he also saw a girl sitting at the back of the vehicle. He saw the girl's face, noticed that she was an iTaukei girl and that she was normal. He and Tomasi offered to show an alternative way out of the park as the gate was locked and they also got into that vehicle. They sat next to the girl and she did not make any complain to them. After travelling a short distance, they got off the vehicle as the girl said she knows the way out. The following morning, he lodged a report about the incident.

Analysis

42.	The prosecution says that, between the 1st June 2008 and 30th June 2008, the accused penetrated the vagina of the complainant without her consent. The accused takes up the position that there was sexual intercourse between the accused and the complainant on the day in question but it was consensual.

43.	You heard the evidence of the complainant. Was she a truthful witness? Defence says that she was not. According to the defence, agreeing to get into the police vehicle at Delaitokatoka with only two male officers, not protesting when she realised that the vehicle is not going towards the police station, not trying to escape when she had the opportunity, not screaming or struggling when the alleged incident took place, not complaining to the driver about accused raping her after the alleged incident, not complaining to the two security officers after the alleged incident, agreeing to continue to stay with the accused and the police driver to show them the way out from Colo-i-Suva park and the fact that she did not make a prompt complaint; suggests that the complainant's claim that she was raped is false.

44.	Defence also says that there were inconsistencies between the complainant's evidence and the evidence given by Shalendra Dutt, the third prosecution witness. Defence points out that the complainant said she tried to run away at Colo-i-Suva and she said that the incident took place at the side of the vehicle; whereas, Witness Dutt said that the complainant did not try to run away and that the complainant and the accused went behind the vehicle after he stopped the vehicle.

45.	With regard to the first complaint made by the complainant to the police, complainant said in her evidence in chief that she made the first complaint on 19/06/08. During cross examination she admitted that it was made on 19/08/08. The investigating officer of the case initially said that the complaint was made on 19/06/08 but during cross examination he admitted that it can be either 19/06/08 or 19/08/08. The only written complaint that was available was dated 19/08/08. The time of offence according to the Information is the period between the 01st June and 30th June 2008. The complainant could not recall the exact date. But according to the 3rd prosecution witness, the alleged incident took place around midnight on 08/06/08.

46.	The complainant says that it took her time to complain because what happened to her was disgusting, she was ashamed and also because she was threatened by the accused. The defence on the other hand says that the complainant did not want to complain because she was not raped but had sexual intercourse with the accused with her consent. Defence says that she came up with a false allegation of rape when her brother confronted her with the information he received about she being seen inside a police vehicle with two police officers at Colo-i-Suva.

47.	It is for you to consider the above evidence and decide whether there is a delay in reporting the incident by the complainant, whether there is any acceptable explanation for it and then how you would consider the delay in deciding whether the complainant can be believed.

48.	I must caution you regarding the evidence of the second prosecution witness and DE01. The defence tendered the document DE01 through the second prosecution witness, Lawakeli which contains a summary of facts and certain findings prepared by the said witness. That summary of facts and the findings were based on the police statements which were available to Witness Lawakeli as at 08/09/08. Please bear in mind that your decision on whether the accused is guilty or not guilty of the offence charged in this case should be based only on the evidence you heard during this trial. In forming your opinion you cannot rely on a summary prepared by a witness based on statements recorded by the police. Therefore, DE01 can only be regarded as evidence with regard to the fact that Witness Lawakeli arrived at those findings on 08/09/08. But you cannot rely on DE01 to decide whether the contents including those findings stated in DE01 are true. 

49.	You also heard that the third prosecution witness, ShalendraDutt was charged along with the accused for aiding and abetting rape and then he was granted immunity by the State on the condition that he gives honest and truthful evidence in this case. The prosecution is relying on the evidence of Witness Dutt mainly to prove the identity of the accused. But the defence did not challenge his account of events regarding the alleged incident that took place on the day in question including his evidence on the identity of the accused. Considering all the evidence before you and the manner in which Witness Dutt gave evidence, you decide whether he was a truthful witness and what weight you give to his evidence.

50.	In this case, the complainant did not identify the accused. However, considering the line of cross-examination, the defence did not take up the position that this is a case of mistaken identity. It is an agreed fact that the accused and Witness Shalendra Dutt picked up an iTaukei female and drove to Colo-i-Suva where the alleged incident took place. Prosecution relies on the evidence of Shalendra Dutt to prove the identity of the accused. As pointed out earlier, the defence did not challenge the evidence of Witness Dutt concerning the identity of the accused. Based on the evidence you decide to accept, you decide whether the prosecution has proven beyond reasonable doubt that it was the accused who committed the alleged offence and no one else.

51.	With regard to the second element involving penetration, complainant said that the accused inserted his penis into her vagina at Colo-i-Suva Park. The defence did not challenge the evidence of the complainant with regard to the accused having sexual intercourse with the complainant. Witness Dutt said, after he stopped the vehicle at Colo-i-Suva, the accused and the complainant got off and went behind the vehicle. He said the accused told him on their way after the incident that he had sex with the complainant. This evidence of Witness Dutt was also not challenged by the defence. Therefore, based on the evidence you consider as credible and reliable, you should decide whether the prosecution has proved beyond reasonable doubt that the accused penetrated the complainant's vagina with his penis.

52.	Next element involves the consent of the complainant. As I have explained to you, not only that the prosecution should prove that the complainant did not consent, but the prosecution must also prove beyond reasonable doubt either, that the accused knew that she was not consenting or that he was reckless as to whether or not she was consenting when he penetrated his penis into the complainant's vagina.

53.	Complainant in her evidence said that the accused asked whether he can have sex with her and when she said no, he forcefully pulled down her pants and inserted his penis into her vagina and then they had sex. She said she asked him to stop when he pulled down her pants because she was having her menses. She said that she got into the police vehicle when the accused came to pick her from Delaitokatoka under the impression that she will be taken to Valelevu Police Station. She said during cross examination that she asked the accused softly where they are taking her when she realized that they are not going to the police station. She said she did not complain to the driver of the vehicle at any time. She said she did not complain to the two security officers they met when they were trying to go out of the Colo-i-Suva Park because she was scared of them. She said she undertook to show the accused and the driver the way out which led to the two security officers getting down from the vehicle leaving her with the accused and the driver. She did not complain to the police until her brother confronted her.

54.	Witness Dutt said that the complainant did not protest when he went with the accused to pick her from Delaitokatoka that night and when the accused sat next to her at the back seat in the police vehicle. He said in his evidence in chief, when the accused sat next to the complainant he told him to go to Colo-i-Suva Forest Park. He did not say that the complainant reacted in any manner at this point. He said when he stopped the vehicle at Colo-i-Suva, the complainant and the accused got down from the vehicle and they went behind the vehicle. During cross examination he said that the complainant did not complain to him about anything at any time. He said on the way from Delaitokatoka to Colo-i-Suva, he noticed the complainant and the accused talking to each other softly.

55.	Prosecution says that the complainant had clearly said in her evidence that she did not consent to have sex with the accused. The defence says that she was a willing partner and she had sexual intercourse with the accused with her consent. According to the defence, the complainant's conduct is not consistent with a person who was raped and she made a false allegation of rape against the accused because she was ashamed when the incident came to light after a security officer at the Colo-i-Suva Park lodged a complaint regarding the police vehicle.

56.	Considering the evidence you decide to accept as credible and reliable, you have to consider whether the prosecution has proved beyond reasonable doubt that the complainant did not consent for the accused to have sexual intercourse with her and, either the accused knew that she was not consenting or that the accused did not care whether or not she was consenting.

57.	You must remember to assess the evidence for the prosecution and defence using the same yardstick but bearing in mind that it is always the prosecution who should prove the case.

58.	If you are sure that the prosecution has proved all the elements I have explained above beyond reasonable doubt, then you should find the accused guilty. If you have a reasonable doubt with regard to any one of the aforementioned elements, you should find the accused not guilty.

59.	Any re-directions?

60.	Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinion you will come back to court and you will be asked to state your opinion.

61.	Your possible opinion is;
Rape – guilty or not guilty

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Ravono&Raikaci Law, Suva.