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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 199 of 2017
STATE
V
UMENDRA KUMAR
Counsel : Ms. Mehzabeen Khan with Ms. Sadaf Shameem for the State
Ms. Lavinia David with Mr. Krisheel Chang for the Accused
Dates of Trial : 26, 29-30 January and 1-2, 12-16, 19-21 February 2018
Summing Up : 23 February 2018
(The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “RRD”.)
SUMMING UP
Madam Assessor and Gentlemen Assessors,
[1] It is now my duty to sum up the case to you. We have reached the final stage of the proceedings before us. The presentation of evidence is over and it is not possible to hear any more evidence. You should not speculate about evidence which has not been given and must decide the case on the evidence which you have seen and heard. The Counsel for the State and the Accused has addressed you on the evidence. After their addresses, it is my duty to sum-up the case to you. You will then retire to consider your opinions.
[2] As the Presiding Judge, it is my duty to ensure that the trial is conducted fairly and according to law. As part of that duty, I will direct you on the law that applies. You must accept the law from me and apply all directions I give to you on matters of law.
[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful, credible and reliable. You will then apply relevant law, to the facts as revealed by such evidence. In that way you arrive at your opinions.
[4] Please remember that I will not be reproducing the entire evidence in this summing up. During my summing up to you, I may comment on the evidence; if I think it will assist you, in 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 evidence. You should ignore any comment I make on the facts unless it coincides with your own independent reasoning.
[5] In forming your opinions, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinion. You must take all evidence into consideration, before you proceed to form your opinion. There are no items of evidence which could safely be ignored by you.
[6] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate among yourselves so as to arrive at your opinions on the charges against the accused. Upon your return to Court, when you are ready, each one of you will be required to state his or her individual opinion orally on the charges against the accused, which opinion will be recorded. Your opinions could preferably be a unanimous one, but could also be a divided one. You will not be asked for reasons for your opinions. I am not bound to conform to your opinions. However, in arriving at my judgement, I assure you, that I shall place much reliance upon your opinions.
[7] I have already told you that you must reach your opinions on evidence, and only on evidence. I will tell you what evidence is and what is not.
[8] In this case, the evidence is what the witnesses said from the witness box and the documents tendered as prosecution exhibits.
[9] If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration. The reason for this exclusion is, what you have heard outside this Courtroom is not evidence. Have regard only to the testimony and the exhibits put before you since this trial began. Ensure that no external influence plays any part in your deliberations.
[10] A few things you have heard in this Courtroom are also not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness’s cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening submission by the State Counsel and closing submissions made by both Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.
[11] As I already indicated to you, another matter which will be of concern to you is the determination of the credibility of witnesses, basically the truthfulness and 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 correctly recalls the facts about which he or she has testified.
[12] Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations that may assist you.
[13] You have seen how the witnesses’ demeanour in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers, or were they evasive? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence in a Court of law and may find Court environment stressful and distracting.
[14] The experience of the Courts is that those who have been victims of sexual offences react differently to the task of speaking about it in evidence. Some will display obvious signs of distress, others will not. The reason for this is that every victim has her own way of coping. Conversely, it does not follow that signs of distress by the witness confirms the truth and accuracy of the evidence given. In other words, demeanour in Court alone is not necessarily a clue to the truth of the witness’s account. It all depends on the character and personality of the individual concerned.
[15] According to the evidence you heard in this case, the complainant was 14 years old at the time of the alleged incident (14 years and 7 months to be precise), in January 2014, and was 18 years old when she testified in Court. Experience shows that children do not all react the same way to sexual acts as adults would. It would be a mistake to think that children behave in the same way as adults, because their reaction to events is conditioned by their personal experience and immaturity and not by any moral or behavioural standard taught or learned. What happened in this particular case is, however, a decision for you to make. Your task is to decide whether you are sure that the complainant has given you a truthful and a reliable account of her experience concerning the offences the accused is charged with.
[16] You may also have to consider the likelihood or probability of the witness's account. That is whether the evidence of a particular witness seems reliable when compared with other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or to know the things that the witness testified about. These are only examples. You may well think that other general considerations assist. It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony.
[17] You heard in this case the evidence of Viman Sonia Chand, a friend of the complainant, who said that the complainant had informed her on Sunday morning (12 January 2014) that the accused had forceful sexual intercourse with her the previous night. Similarly, Sonia testified that the complainant had informed her on Monday morning (13 January 2014) that the accused had once again had forceful sexual intercourse with her the previous night. You should consider whether this could be regarded as a complaint made by the complainant of the alleged incidents. If so you should also consider whether she made that complaint without delay and whether she sufficiently complained of the offences the accused is charged with.
[18] The complainant need not specifically disclose all of the ingredients of the offence and describe every detail of the incident, but the complaint should contain sufficient information with regard to the alleged conduct of the accused. Accordingly, if you are satisfied that she made a prompt and a proper complaint, then you may consider that her credibility is strengthened in view of that recent complaint, at least in respect of counts two and three.
[19] In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his or her evidence. This includes omissions as well. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. This is how you should deal with inconsistencies. You should first decide whether that inconsistency is significant. That is, whether that inconsistency is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not expect every detail to be the same from one account to the next. If there is an acceptable explanation for the inconsistency, you may conclude that the underlying reliability of the account is unaffected.
[20] However, if there is no acceptable explanation for the inconsistency which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistencies in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is for you to decide. Therefore, if there is an inconsistency that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of his or her evidence is inaccurate. In the alternative, you may accept the reason he or she provided for the inconsistency and consider him or her to be reliable as a witness.
[21] Madam and Gentlemen Assessors, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.
[22] Having placed considerations that could be used in assessing credibility and reliability of the evidence given by witnesses before you, I must now explain to you, how to use that credible and reliable evidence. These are directions of the applicable law. You must follow these directions.
[23] When you have decided the truthfulness and reliability of evidence, then you can use that credible and reliable evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the accused is guilty or not to the four charges he is charged. I have used the term “question of fact”. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as Assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.
[24] It is not necessary to decide every disputed issue of fact. It may not be possible to do so. There are often loose ends. Your task is to decide whether the prosecution has proved the elements of the offences charged.
[25] In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. Those facts are called primary facts.
[26] But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.
[27] In order to illustrate this direction, I will give you a very simple example. Imagine that when you walked into this Court room this afternoon, you saw a particular person seated on the back bench. Now he is not there. You did not see him going out. The fact you saw him seated there when you came in and the fact that he is not there now are two primary facts. On these two primary facts, you can reasonably infer that he must have gone out although you have not seen that. I think with that example you will understand the relationship between primary fact and the inferences that could be drawn from them.
[28] I must emphasize, it does not matter whether that evidence was called for the prosecution or for the defense. You must apply the same standards, in evaluating them.
[29] Then we come to another important legal principle. You are now familiar with the phrase burden of proof. It simply means who must prove the case. That burden rests entirely on the prosecution to prove the guilt of the accused.
[30] This is because the accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offences charged. The fact that the accused has given evidence does not imply any burden upon him to prove his innocence. It is not his task to prove his innocence.
[31] I have said that it is the prosecution who must prove the allegations. Then what is the standard of proof or degree of proof, as expected by law?
[32] For the prosecution to discharge its burden of proving the guilt of the accused, it is required to prove it beyond any reasonable doubt. This means that in order to convict the accused, you must be sure that the prosecution has satisfied beyond any reasonable doubt every element that goes to make up the offences charged. A reasonable doubt is not any doubt or a mere imaginary doubt but a doubt based on reason.
[33] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences, in order to find the accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the accused not guilty. If you are not left with any such reasonable doubt, then your duty is to find the accused guilty.
[34] You should disregard all feelings of sympathy or prejudice, whether it is sympathy for the complainant or anger or prejudice against the accused or anyone else. No such emotion should have any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must adopt a fair, careful and reasoned approach in forming your opinions.
[35] Let us now look at the charges contained in the Amended Information.
[36] There are four charges preferred by DPP, against the accused:
COUNT 1
Statement of Offence (a)
ABDUCTION OF YOUNG PERSONS: Contrary to Section 285 of the Crimes Act 2009.
Particulars of Offence (b)
UMENDRA KUMAR on the 10th day of January 2014, at Nasinu, in the Central Division, unlawfully took RRD, a young person being under the age of 18 years, out of the possession and against the will of her mother RANITA DEVI.
COUNT 2
Statement of Offence (a)
RAPE: Contrary to Section 207 (1) and 2 (a) of the Crimes Act 2009.
Particulars of Offence (b)
UMENDRA KUMAR between the 11th day of January 2014 and the 12th day of January 2014, at Nadi, in the Western Division, penetrated the vagina of RRD with his penis, without her consent.
COUNT 3
Statement of Offence (a)
RAPE: Contrary to Section 207 (1) and 2 (a) of the Crimes Act 2009.
Particulars of Offence (b)
UMENDRA KUMAR on the 12th day of January 2014, at Nadi, in the Western Division, penetrated the vagina of RRD with his penis, without her consent.
COUNT 4
Statement of Offence (a)
RAPE: Contrary to Section 207 (1) and 2 (a) of the Crimes Act 2009.
Particulars of Offence (b)
UMENDRA KUMAR on the 13th day of January 2014, at Rakiraki, in the Western Division, penetrated the vagina of RRD with his penis, without her consent.
[37] As you would have noted there is one count of Abduction of a Young Person, contrary to Section 285 of the Crimes Act No. 44 of 2009 (Crimes Act) and three counts of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Act.
[38] Section 285 of the Crimes Act reads as follows:
“Any person commits a summary offence if he or she unlawfully takes or causes to be taken any young person, being under the age of 18 years, out of the possession and against the will of his or her father or mother, or of any other person having the lawful care or charge of the young person.”
[39] Therefore, in order for the prosecution to prove the first count of Abduction of a Young Person, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) On the specified day (in this case the 10 January 2014);
(iii) At Nasinu, in the Central Division;
(iv) Unlawfully took RRD, out of the possession and against the will of her mother Ranita Devi; and
(v) The complainant was a young person being under the age of 18.
[40] The first element 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.
[41] The second element relates to the specific day or period on which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.
[42] The fourth element relates to an unlawful taking of the complainant, out of the possession and against the will of her mother. The word “unlawfully’’ simply means without lawful excuse. Therefore, the taking of the complainant must be without lawful excuse. There must also be evidence of a substantial interference with the possessory relationship between the complainant and her mother. The prosecution should prove these elements beyond reasonable doubt.
[43] The final element relates to the age of the complainant at the time the offence was committed. The complainant must be a young person under the age of 18. In this case, the complainant was 14 years old at the time of the alleged incident (14 years and 7 months to be precise).
[44] Now to deal with the offences of Rape. Section 207(1) of the Crimes Act reads as follows:
207. — (1) Any person who rapes another person commits an indictable offence.
[45] Section 207(2)(a) of the Crimes Act provides that:
(2) A person rapes another person if —
(a) the person has carnal knowledge with or of the other person without the other person’s consent;
[46] Therefore, when Section 207(1) is read with Section 207(2)(a) it would read as follows:
207. — (1) Any person who rapes another person commits an indictable offence.
(2) A person rapes another person if —
(a) the person has carnal knowledge with or of the other person without the other person’s consent.
[47] In layman’s terms, having carnal knowledge with or of the other person, as stated in Section 207(2)(a), means having penile sexual intercourse with that other person or having sexual intercourse with the use of the penis.
[48] Therefore, in order for the prosecution to prove the second count of Rape, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) During the specified period (in this case between 11 January 2014 and the 12 January 2014);
(iii) At Nadi, in the Western Division;
(iv) Penetrated the complainant’s vagina, with his penis;
(v) Without the consent of the complainant; and
(vi) The accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not she was consenting.
[49] Similarly, in order for the prosecution to prove the third count of Rape, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) On the specified day (in this case the 12 January 2014);
(iii) At Nadi, in the Western Division;
(iv) Penetrated the complainant’s vagina, with his penis;
(v) Without the consent of the complainant; and
(vi) The accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not she was consenting.
[50] Likewise, in order for the prosecution to prove the fourth count of Rape, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) On the specified day (in this case the 13 January 2014);
(iii) At Rakirakiu, in the Western Division;
(iv) Penetrated the complainant’s vagina, with his penis;
(v) Without the consent of the complainant; and
(vi) The accused knew or believed that the complainant was not consenting, or the accused was reckless as to whether or not she was consenting.
[51] In respect of counts two, three and four, the first element 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.
[52] The second element relates to the specific day or period on which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.
[53] The fourth element involves the penetration of the complainant’s vagina; with his penis. The law states, the slightest penetration is sufficient to satisfy this element of penetration. This element is complete on penetration to any extent and it is not necessary to have evidence of full penetration or ejaculation. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the vagina of the complainant with his penis to any extent.
[54] The fifth and sixth elements are based on the issue of consent. To prove the fifth element, the prosecution should prove that the accused penetrated the complainant’s vagina, with his penis, without her consent.
[55] You should bear in mind that consent means, consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the fact that there was no physical resistance shall not alone 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 threat or intimidation; or
(c) by fear of bodily harm; or
(d) by exercise of authority; or
(e) by false and fraudulent representations about the nature or purpose of the act; or
(f) by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.
[56] Apart from proving that the complainant did not consent for the accused to insert his penis, into her vagina, the prosecution must also prove that, either the accused knew or believed that complainant was not consenting or he was reckless as to whether or not she consented. The accused was reckless, if the accused realised there was a risk that she was not consenting, but carried on anyway when the circumstances known to him it was unreasonable to do so. Simply put, you have to see whether the accused did not care whether the complainant was consenting or not. Determination of this issue is dependent upon who you believe, whilst bearing in mind that it is the prosecution who must prove it beyond any reasonable doubt.
[57] A woman of over the age of 13 years is considered by law as a person with necessary mental capacity to give consent. The complainant in this case was 14 years of age at the time of the incident, and therefore, she had the mental capacity to consent.
[58] In our law, no corroboration is needed to prove an allegation of a Sexual Offence; Rape is obviously considered as a Sexual Offence. Corroborative evidence is independent evidence that supplements and strengthens evidence already presented as proof of a factual matter or matters.
[59] If you are satisfied beyond any reasonable doubt that the accused, on 10 January 2014, unlawfully took the complainant, RRD, out of the possession and against the will of her mother Ranita Devi, then you must find him guilty of the first count of Abduction of a Young Person.
[60] If you are satisfied beyond any reasonable doubt that the accused, between 11 January 2014 - 12 January 2014, penetrated the complainant’s vagina with his penis, without her consent, then you must find him guilty of the second count of Rape.
[61] If you are satisfied beyond any reasonable doubt that the accused, on 12 January 2014, penetrated the complainant’s vagina with his penis, without her consent, then you must find him guilty of the third count of Rape.
[62] If you are satisfied beyond any reasonable doubt that the accused, on 13 January 2014, penetrated the complainant’s vagina with his penis, without her consent, then you must find him guilty of the fourth count of Rape.
[63] If you find that the prosecution has failed to establish any of these elements in relation to any of the four counts, then you must find the accused not guilty to all four charges.
[64] However, in the event you have a reasonable doubt as to whether the prosecution has proven the two elements based on consent, which I explained earlier, beyond reasonable doubt and therefore the offence of Rape, in counts two, three and four is not established, as an alternative, you may consider whether the accused is guilty or not guilty of the lesser offence of Defilement of Young Person between 13 and 16 Years of Age, in respect of the said counts, though the accused is not formally charged in the Information for that offence.
[65] A person who penetrates the vagina of a complainant who is between the age of 13 and 16 with his penis is guilty of the offence of Defilement of Young Person between 13 and 16 Years of Age, under Section 215(1) of the Crimes Act.
[66] It is a defence to this offence if it appears to you that the accused had reasonable cause to believe, and did in fact believe, that the complainant was of or above the age of 16 years at the time.
[67] I wish to remind you once again that you need to go in this direction ONLY if you find that the prosecution has failed to establish the two elements based on consent beyond reasonable doubt in counts two, three and four. If you are satisfied that the prosecution has established all the elements constituting the offences of Rape beyond reasonable doubt, then you must find the accused guilty of Rape as charged in respect of the said counts two, three and four.
[68] These are some of my directions on law and I will now briefly deal with the evidence presented before this Court.
[69] The prosecution, in support of their case, called the complainant, her mother, Ranita Devi, Dr. Brian Guevara and Viman Sonia Chand.
Case for the Prosecution
[70] Evidence of the complainant RRD
(i) The complainant’s date of birth is 28 May 1999. A copy of her birth certificate was tendered to Court as Prosecution Exhibit P1. Therefore, as at January 2014, the complainant was 14 years of age.
(ii) In 2014, the complainant was residing at Navosai in Narere and was schooling at Bhawani Dayal Arya College.
(iii) The complainant testified that on 6 January 2014, she had gone to the Pastor’s house. There was a prayer meeting for 3 days. She later referred to the Pastor as Pastor James Lal. The Pastor’s house is located at Matanikorovatu Road at 8 Miles.
(iv) On 8 January she had returned home. In the evening, the Pastor had called her mother and asked whether the complainant could come back to his place. Since her friend Sonia was already at the Pastor’s house, she had agreed. Thus the complainant had returned to the Pastor’s house the same day.
(v) She said Sonia was a school friend and they used to go to church together. She had known Sonia for one year, since 2013.
(vi) The complainant testified that around 7.00 p.m., on Friday 10 January 2014, a friend of hers named Kunal (a church member) had come to the Pastor’s house. Later Kunal had come to the bedroom occupied by the complainant and Sonia.
(vii) On seeing Kunal in the bedroom, the Pastor’s wife got angry, and asked him to leave (the complainant refers to the Pastor’s wife as grandma). She had then said “next morning you people just wait and watch what I am going to do. I am going to call your parents”.
(viii) Due to this (fearful of what would happen the next morning), the complainant and Sonia had decided to leave the Pastor’s house. Thus they had left around 11.00 p.m. on Friday, 10 January 2014. The complainant stated that they were planning to walk back to her home at Navosai in Narere, using a short cut (through Muanikoso Road).
(ix) As they left the Pastor’s house, a taxi came and stopped near them on the Matanikorovatu Road. The driver had asked where they were going. RRD had replied that they were going to her home at Navosai. The taxi driver had said that he will go and drop them. However, she had said, it is okay, we are going to walk from here.
(x) Then the taxi driver had come out of the taxi with a knife in his hand. He had put the knife on her neck and told Sonia to get inside the taxi. The witness demonstrated in Court as to how the taxi driver had held on to her with a knife in his hand. She said that they were shouting out for help, but there was nobody nearby.
(xi) The complainant described the knife as something like a dagger knife. She said the shape of the knife was a bit strange. Not like a normal knife which is used in the kitchen. [The complainant had drawn a picture of the knife in Court. However, I directed you to disregard that picture].
(xii) After the taxi driver had put the knife on her neck and grabbed her, he told Sonia to sit at the back seat of the taxi. Then he had pushed the complainant and told her to sit in the front seat. She had done so.
(xiii) The taxi driver then drove the taxi from Matanikorovatu Road towards Suva – instead of turning left, he turned right. The complainant had asked him where he was going, the taxi driver swore at her. He said “magai tinamu” (meaning your mother’s vagina). He had also told her to shut her mouth (in the Hindi language).
(xiv) The taxi driver had then asked Sonia where she lives. Sonia had said that she lives at Rewa Street. The witness testified that during the weekends, Sonia stays at Rewa Street, with her step mother, whilst during the week she stays at her mother’s sister’s house at Nadawa.
(xv) The taxi driver had then told Sonia, that he will take her to Rewa Street and for her to bring her new clothes. He had then driven them to Rewa Street. He had warned Sonia that if she tried to tell anything to anyone, he will cut/kill the complainant. He had also said, “Don’t forget my name is Vadra, everyone knows me and I am not scared of anyone”.
(xvi) At Rewa Street, Sonia had gone inside the house and came out with three plastic bags containing clothes. At the time Sonia returned and got into the taxi, the taxi driver had taken the complainant’s mobile from her possession. She testified that sometime later, he had taken Sonia’s mobile phone as well.
(xvii) From there, the taxi driver had driven to Lautoka. It was the next morning (Saturday morning), when they had reached Lautoka. The complainant testifies that when they reached Lautoka she was clearly able to identify the taxi driver as the accused. Later she positively identified the accused in Court.
(xviii) They had stopped near Lautoka Town. A person, who the accused later identified as his friend Ron, had been waiting there with a carton of beer. Later, the witness testified that Ron was the accused’s brother. Ron had got in and sat at the back seat of the taxi. Thereafter, the taxi driver had driven to Nadi.
(xix) On reaching Nadi, they had arrived at a house and parked the taxi at the driveway leading to the house. However, prior to going inside the house, the accused and Ron had forcibly taken the complainant and Sonia to the beach. The accused and Ron had been drinking beer. They had forced the complainant and Sonia to have beer with them. However, RRD and Sonia had refused.
(xx) The witness testified, that throughout the journey from Suva to Lautoka, and thereafter to Nadi, the accused had kept the knife, which was originally shown to her, on the door by the driver’s side (right side door).
(xxi) After the accused and Ron had finished three bottles of beer, the complainant and Sonia were taken to the house. They had walked from the beach to the house. Only the accused’s brother- in-law, who was known as Pattru, was present in the house and no one else. Pattru had been cooking at the time.
(xxii) Thereafter, the accused and Ron sat outside the house, in the compound. They had told the complainant and Sonia to sit with them. The accused and Ron had then drunk the left over beer. The accused had forced her and Sonia to drink beer. The witnessed demonstrated how the accused was holding her mouth and trying to put the glass of beer into her mouth. The complainant had pushed the accused’s hand and said that she was not drinking beer. She had also said that she was a Christian and that she was only 14 years old.
(xxiii) Later Pattru brought food for everyone. After eating, Pattru showed them two bedrooms for them to sleep in. She had asked Pattru why two different rooms? Pattru had said one for you and one for Sonia. The complainant had gone to the bedroom shown to her and gone to sleep.
(xxiv) She had then felt someone touching her breasts. She had woken up and seen that it was the accused. She had pushed him away. The accused had put one hand on her mouth and started swearing at her. He had the same knife (that was shown earlier to her). He kept the knife on the drawer beside the bed. He had said, if you shout or say anything, I will cut you. Just do whatever I am telling you. The complainant said that she felt scared and was crying. She was also telling the accused that you are like my father. However, although she was shouting, nobody had come to her assistance. She had called out Sonia’s name but Sonia didn’t come.
(xxv) The accused had then removed his clothes (his shirt and pants), and his garments. He had then removed her clothes as well – her pants and under garments (her panty). He had then, forcefully had sexual intercourse with her. The witness said, that the accused had raped her. When asked to explain, she said the accused put his penis inside her vagina. She said it was painful. She was crying and shouting but nobody came to help her. The accused had been doing this for nearly ten minutes. He had also been kissing her all over her face and neck. The complainant testified that she had been crying and trying to push the accused away, and telling him to stop doing this as it was painful. However, the accused had continued. He had been swearing at her and saying, shut your mouth or I will throw you too into this bush. Thereafter, the accused had slept beside her until morning. The complainant states that she was crying the whole night and did not sleep.
(xxvi) The next morning, Sunday morning, the accused had got up and left the room. The complainant had been sitting on the bed. She had then gone to the room where Sonia was in. There was no one else in that room. She had told Sonia everything that happened in the night. Sonia had felt very sorry for her. Sonia said that she had heard the complainant’s voice last night, but she could not come to her assistance as Ron was with her.
(xxvii) Later, Pattru had come and said, if you want I can show you the bathroom and you can have a shower. RRD and Sonia then had their shower. Thereafter, they had been sitting inside the room Sonia had been in, as they were very scared.
(xxviii) Later on Sunday night, the accused came and pulled and dragged her from Sonia’s room and took her to the room she had been the night before. He went into the room, and pushed her onto the bed. He removed his clothes. The complainant had been crying and calling out Sonia’s name. She had told the accused to leave her alone, but he did not do so. The accused had then taken off her clothes (the pants and panty she was wearing). The accused had then had forceful sexual intercourse with her. He had put his penis inside her vagina. He had done so for 10-15 minutes. While doing so, he had been pressing her neck and swearing at her. He had said, “Bitch I will cut you and throw you in this jungle”. She had been afraid and was crying and calling for help. But nobody came to her assistance. The accused had then slept beside her until morning. The complainant had been crying the whole night and did not sleep.
(xxix) The witness testified that the door to the room had been locked from inside and outside. She had checked when the accused was sleeping.
(xxx) The next morning, (which was Monday morning), the accused had woken up. The complainant had been sitting on the bed. The accused had asked Ron to open the door from outside and Ron had done so. Thereafter, the accused had left the room. The complainant had remained in the room. At that time Sonia had come into her room and the complainant had told everything that happened the night before to her.
(xxxi) Later in the morning the accused and Ron had said we have to go from here. Ron said that they were going to Rakiraki. The complainant and Sonia had gone and sat inside the taxi. The accused had told the complainant to sit in the front seat, while Ron and Sonia sat at the back seat. They had then left Nadi. The accused had taken them to Naria in Rakiraki (near the Malake Landing). The accused had said that they were being taken to his uncle and aunt’s house. If you tell anything to them, I am not scared of anyone. I will cut you two and dig one hole inside the mountain and bury you two. He had said so by pointing towards her and Sonia.
(xxxii) On reaching Rakiraki, the accused ordered the complainant and Sonia to get off from the taxi and took them inside the house. Only the accused’s uncle and aunt had been present in that house. The accused had introduced the complainant as his wife, and Sonia as Ron’s wife. The witness testified that she was afraid to say anything to the accused’s uncle and aunt at the time as the accused had threatened her and Sonia.
(xxxiii) The accused’s aunt had given them food to eat that night. (The complainant states that she did not have any food to eat after the food she ate in Nadi on Saturday night). Thereafter, the complainant and Sonia had been in one room. Later that night the accused came into that room together with Ron. Ron took Sonia away. The accused closed the door of the room.
(xxxiv) The accused had then pressed her neck and swore at her. He had said “magai tinamu” and “caiti tamamu” (meaning fuck your father). The accused had said, remember what I said before, if you tell something to uncle and aunty, remember I am not scared of anyone, not even uncle and aunty. I will kill all of you. He had then had forceful sexual intercourse with the complainant. He had removed his clothes, (his pants and under garments). He had then removed her pants and panty and put his penis into her vagina. He had been doing this for 10-15 minutes. He had also been kissing the complainant on her neck. She had been crying, as it was very painful. She said she had also been very scared due to the threats made to her by the accused. She had been pushing the accused and telling him to go away. But the accused did not comply. Thereafter, the accused had slept beside her. She had been crying but later fallen asleep as well.
(xxxv) The accused had related to her a story about one Dip Chand and three sisters. The accused had said that Dip Chand had kidnapped the three sisters. He had cut them in pieces and buried them in the mountain. The accused said Dip Chand is his friend. If Dip Chand can do that and is free today, what can I do, just think about that. The witness testified that the accused had been telling her this story while having forceful sexual intercourse with her that night.
(xxxvi) The next morning (which was Tuesday morning), she had woken up around 8.00 a.m., the accused was sitting in the sitting room. She had then gone and had her shower. They all had breakfast. The accused had told his uncle that he is going to drop Ron in Lautoka and will go straight to Suva to attend his Court case and will come back to Rakiraki. At that point in time, the accused had returned her phone and Sonia’s phone. He had said, remember darling, don’t call anyone, Uncle and aunty are here at home. The accused and Ron had then left home.
(xxxvii) The complainant said that her phone battery was low so she had to charge the phone. There was one charger in the sitting room, which she used to charge her phone. Thereafter, she and Sonia had gone outside the house and sat down under the mango tree. They both had fallen asleep.
(xxxviii) Later that evening, the accused and Ron had returned home. This must have been around 6.00 in the evening. They all had their dinner. The complainant and Sonia went inside the room the complainant was occupying. Her phone was still in the sitting room. She saw the accused take the phone and put it inside his pocket.
(xxxix) The complainant had fallen asleep and woken up the next morning (which was Wednesday morning). She had seen the accused sleeping beside her. When she went outside the room and spoke to Sonia, Sonia had said that accused had come into the room the previous night and told Sonia to leave the room.
(xl) That morning, the complainant and Sonia had searched for her phone inside the room. The complainant had checked the accused’s clothes. Inside the pocket her phone was found. The complainant had then told Sonia that she was going to the bathroom to send a call back message to her mother. She told Sonia to stand outside the bathroom and to inform her if anybody comes.
(xli) The complainant had then sent a call back message to her mother, who had called her back immediately. The complainant had informed her mother where they were (in Rakiraki).
(xlii) Later that night, the Police had arrived and surrounded the house. The Police had arrested the accused and Ron. The complainant and Sonia had left with the Police. The complainant had met her mother and other family members, who had been standing at the bowser.
(xliii) The complainant was cross examined at length. It was put to her that she and Sonia had stopped the taxi, on Friday night, near the Laqere bus stop and got into the taxi as passengers. It was also put to her that she and Sonia were never forced to get into the taxi, but they got in on their own free will. It was also suggested to her that there were several opportunities for the complainant and Sonia to escape from the accused and to seek help, but neither she nor Sonia did so.
(xliv) It was also suggested to the complainant that at no time, did the accused have sexual intercourse with her in Nadi and Rakiraki as testified by her.
[71] Evidence of Ranita Devi
(i) She is the complainant’s mother. She has three children, 2 sons and the complainant.
(ii) She testified that the complainant went to the Pastor’s house on 6 January 2014. She had returned home. However, on the request made by the Pastor and his wife, the complainant went back to the Pastor’s house.
(iii) Around 4.00 in the morning on Saturday (11 January 2014), she had received a call from the Pastor inquiring whether the complainant had come home. The Pastor had informed that both the complainant and Sonia were not in their room.
(iv) Thereafter, she and her husband had gone to the Pastor’s house to find out what happened.
(v) The witness had then gone to the Nasinu Police Station (8 miles Mobile Police Station), and made a complaint that her daughter was missing. The Police had then began looking for the complainant and Sonia.
(vi) The complainant had contacted her on Wednesday (15 January 2014) and informed that she and Sonia were at Rakiraki. The witness had then informed the Police and accompanied the Police party to Rakiraki, where the complainant and Sonia had been found.
(vii) The witness testified that she never gave consent or permission to the accused to take the complainant with him.
[72] Evidence of Dr. Brian Guevara
(i) He is a Medical Officer working at the CWM Hospital in the Obstetrics and Gynaecology Department.
(ii) He had conducted a medical examination on the complainant on 16 January 2014. The Medical Examination Report was tendered to Court as Prosecution Exhibit P2.
(iii) Under specific medical findings, the Doctor had noted the following:
- - Hymen-irregular remnants only noted. There was no bleeding, no laceration. A small superficial ulcer (about 0.5 cms long) was noted in the posterior fourchette of the vagina. Although, there was no bleeding, the injury was still tender and there was redness around the injury.
- - Swollen lower lip-tender to touch; no redness; no laceration noted on the lip.
- - Rest of the body examined-No abnormality detected.
(iv) The Doctor testified that the hymen is a piece of membrane that covers the inner lining of the vagina. It is usually smooth and has a hole in the middle to permit the flow of menses out. Any penetration, including sexual intercourse can obliterate or destroy the continuity of the hymen.
(v) He stated that what was meant by irregular remnant of the hymen was that the continuity of the hymen is not present. Whatever remains are only irregular remnants.
(vi) The Doctor stated that an ulcer in the vagina of a 14 year old is not normal. The possible causes could be vaginal injury due to trauma or infection. Trauma can be any unusual force applied to the vagina – direct force or penetrative force – of a magnitude which would usually create an injury. The Doctor stated that he did not see any evidence of infection.
[73] Evidence of Viman Sonia Chand
(i) She is 21 years of age. Her date of birth is 10 July 1996.
(ii) In January 2014, she was 17 years of age. She was residing at Ritova Street off Rewa Street, with her grandmother’s sister. Both her parents had passed away.
(iii) She testified that on 10 January 2014 she had been at Pastor James Lal’s house. Her friend, RRD, was also there with her. She had known the complainant for one year at the time.
(iv) The witness testified to the events that took place on the night of 10 January 2014, upto the point where the Police had come and rescued her and RRD in Rakiraki on the night of 15 January 2014.
[74] That was the case for the prosecution. You then heard me explain several options to the accused. I explained to him that he could give sworn evidence from the witness box and/or call witnesses on his behalf. He could also address Court by himself or his counsel. He could have even remained silent. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests entirely on the prosecution at all times. In this case, the accused opted to offer evidence under oath.
[75] Evidence of the Accused – Umendra Kumar
(i) The accused testified that he is 37 years old. He is in a defacto relationship with Vinita Devi for the 19 years. They have one son together who is 17 years old.
(ii) He is a taxi driver by occupation. He has been a taxi driver for over 15 years. He drives taxis owned by others.
(iii) On 10 January 2014, he was driving a black Toyota Crown taxi, the taxi was running on gas.
(iv) He had commenced work for that day at 10.00 in the morning, and had worked until 11.00 in the night. He had taken breaks in between and rested.
(v) He had ended up at Suva and was going home. He testified that he has a base in Suva.
(vi) At the time, he was residing at Vuci Road in Nausori.
(vii) He testified that there is a bus stop in the Laqere area, at the bend close to a quarry. Close to the bus stop, Sonia had waved at the taxi and he stopped. Thereafter, Sonia and the complainant had got into the taxi. He testified that he got to know the names of Sonia and the complainant only in Court.
(viii) He thought both the complainant and Sonia were big girls. When asked how old RRD was at that time, he said he thought she was above 20 years.
(ix) The complainant and Sonia wanted him to take them to Happy Garden in Nabua. He had agreed to take them to Nabua. The accused testified as to what took place in Nabua and what transpired thereafter. They had proceeded to Ritova Street for Sonia to collect her clothes. Thereafter, they had gone to Wainadoi and come to the Suva bus stand. He also testified that on two occasions that night he had gone to the Kundan Singh Service Station to fill gas.
(x) At the Suva bus stand, the complainant and Sonia had informed that they wished to go to Nadi. He had agreed to take them to Nadi on the payment of $110.00. The accused testified that he took the complainant and Sonia to Nadi, and to what had transpired in Nadi.
(xi) On Sunday 12 January 2014, the accused had been wanting to go to Rakiraki to visit his uncle’s house. Both the complainant and Sonia had wanted to go with him to Rakiraki and from there to return to Suva. The accused testified at length as to the events which transpired in Rakiraki.
- (xii) In this case, the accused is taking up a total denial of all the charges against him. His position is that Sonia has stopped his taxi on Friday (10 January 2014) night. The complainant and Sonia had got into his taxi as passengers and on their own free will. He states that due to the manner in which they had been behaving he had thought that the complainant and Sonia were big girls; and that the complainant was over 20 years of age.
- (xiii) Although he admits that the complainant and Sonia were with him until Wednesday (15 January 2014), he totally denies having sexual intercourse with the complainant on any occasion, either in Nadi or in Rakiraki. His position is that while at Nadi he was with his family and that his mother, step-father, sister, brother-in-law and their two children were present at home. Similarly, while at Rakiraki his uncle and aunty and their son were present at home. Thus, there was no possibility for him to have sexual intercourse with the complainant.
Analysis
[76] The above is a brief summary of the evidence led at this trial. The prosecution relied on the evidence of the complainant, her mother, Ranita Devi, Dr. Brian Guevara and Viman Sonia Chand to prove its case. The defence relied on the evidence of the accused himself.
[77] As I have informed you earlier, the burden of proving each ingredient of the charges rests entirely and exclusively on the prosecution and the burden of proof is beyond any reasonable doubt.
[78] In assessing the evidence, the totality of the evidence should be taken into account as a whole to determine where the truth lies.
[79] You must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by the prosecution witnesses are truthful and, in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty of all four counts, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution had proved the elements of the offences of Abduction of a Young Person and Rape, beyond any reasonable doubt.
[80] It is important that you must employ the same considerations which you employed in assessing truthfulness and reliability on the prosecution evidence, also when you are assessing the evidence of the accused. You must consider his evidence also for its consistency and also the probability of his version. If you find the evidence of the accused is truthful and reliable, then you must find the accused not guilty of all four charges, since the prosecution has failed to prove its case.
[81] If you neither believe the evidence adduced by the accused nor disbelieve such evidence, in that instance as well, there is a reasonable doubt with regard to the prosecution case. The benefit of such doubt should then accrue in favour of the accused and he should be found not guilty of the charges.
[82] However, I must caution you that even if you reject the evidence of the accused as not truthful and also unreliable that does not mean the prosecution case is automatically proved. The prosecution have to prove their case independently of the accused and that too on the evidence they presented before you.
[83] As you already know there is one count of Abduction of a Young Person and three counts of Rape against the accused in the Amended Information. You must consider each count separately and you must not assume that because the accused is guilty on one count, that he must also be guilty of the others as well.
[84] In summary and before I conclude my summing up let me repeat some important points in the following form:
[85] Any re directions the parties may request?
The State Counsel brought to the notice of Court that my directions regarding recent complaint (as found in paragraphs 17 and 18 of this summing up) needs further elaboration. Accordingly, I direct the Assessors as follows:
The complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with her evidence given at the trial. It goes to support and enhance the credibility of the complainant.
[86] Madam Assessor and Gentlemen Assessors, this concludes my summing up of the law and evidence. Now you may retire and deliberate together and may form your individual opinions on the four counts separately against the accused. When you have reached your individual opinions you will come back to Court, and you will be asked to state your opinions.
[87] Your possible opinions should be as follows:
First Count
Abduction of a Young Person- Guilty or Not Guilty
Second Count
Rape- Guilty or Not Guilty
If not guilty,
In the alternative
Defilement of Young Person between 13 and 16 Years of Age- Guilty or Not Guilty
Third Count
Rape- Guilty or Not Guilty
If not guilty,
In the alternative
Defilement of Young Person between 13 and 16 Years of Age- Guilty or Not Guilty
Fourth Count
Rape- Guilty or Not Guilty
If not guilty,
In the alternative
Defilement of Young Person between 13 and 16 Years of Age- Guilty or Not Guilty
[88] I thank you for your patient hearing.
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
AT SUVA
Dated this 23rd Day of February 2018
Solicitors for the State : Office of the Director of Public Prosecutions, Suva.
Solicitors for the Accused : Office of the Legal Aid Commission, Suva.
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