IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 165 of 2015

STATE

V

ROHIT RIKASH CHAND

Counsel			:	Ms. R. Uce for the State.
				:	Ms. M. Sukanaivalu for the Accused.

Dates of Hearing		:	25, 26, 29 April, 2019
Closing Speeches	:	30 April, 2019
Date of Summing Up	:	30 April, 2019	

SUMMING UP

      (The name of the complainant is suppressed she will be referred to as “DG”).

Madam and Gentlemen Assessors

1.	It is now my duty to sum up this case to you.

	ROLE OF JUDGE AND ASSESSORS

2.	In doing so, I will direct you on matters of law, which you must accept and act upon.  On matters of facts, however, which witness to accept as reliable, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves.  If I do not refer to a certain portion of evidence which you consider as important, you should still consider that evidence and give it such weight as you wish.

3.	So, if I express an opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions.  You are the judges of facts.

4.	You decide what facts are proved and what inferences you properly draw from those facts.  You then apply the law as I explain it to you and form your own opinion as to whether the accused is guilty or not.

5.	State and Defence Counsel have made submissions to you about how you should find the facts of this case.  That is in accordance with their duties as State and Defence Counsel in this case.

6.	Their submissions were designed to assist you as judges of facts.  However, you are not bound by what they said.  You can act upon it if it coincides with your own opinion. As representatives of the community in this trial it is you who must decide what happened in this case and which version of the facts to accept or reject.

7.	You will not be asked to give reasons for your opinions and your opinion need not be unanimous.  Your opinions are not binding on me but it will assist me in reaching my judgment.

8.	During the closing speeches the defence counsel had told you that the prosecution has failed to call Senior Doctor Jenyo who according to counsel would have been more suitable to give evidence than Dr. Fesaitu. I direct you to disregard this comment since you are not to speculate why a witness has not been called by the prosecution. It is the prerogative of the prosecution who they wish to call as their witness. In this case it was Dr. Fesaitu who had examined the complainant and completed the medical examination form.  

9.	Furthermore, the defence counsel had also told you that Dr. Fesaitu was not a “professional medical expert”. I direct you to disregard this as well. This assertion by defence counsel is incorrect since Dr. Fesaitu is a medical practitioner having obtained his MBBS degree from the University of Otago in the year 2012.  

	BURDEN OF PROOF AND STANDARD OF PROOF

10.	As a matter of law, the burden of proof rests on the prosecution throughout the trial and it never shifts to the accused.  There is no obligation on the accused to prove his innocence.  Under our system of criminal justice, an accused person is presumed to be innocent until he or she is proven guilty.

11.	The standard of proof in a criminal trial is one of proof beyond reasonable doubt.  This means you must be satisfied so that you are sure of the accused’s guilt, before you can express an opinion that he is guilty.  If you have any reasonable doubt about his guilt, then you must express an opinion that he is not guilty.

12.	Your decision must be based exclusively upon the evidence which you have heard in this court and nothing else.  You must disregard anything you must have heard about this case outside of this courtroom.

13.	You must decide the facts without prejudice or sympathy to either the accused or the complainant.  Your duty is to find the facts based on the evidence without fear, favour or ill will.

14.	Evidence is what the witnesses said from the witness box, documents or other materials tendered as exhibits.  You have heard questions asked by the counsel and the court they are not evidence unless the witness accepts or has adopted the question asked. 

	INFORMATION

15.	The accused is charged with one count of rape. (A copy of the amended information is with you).
 COUNT ONE
Statement of Offence
RAPE: Contrary to section 207 (1) and (2) (b) and (3) of the Crimes Act, 2009.
Particulars of Offence
ROHIT RIKASH CHAND, on the 14th day of August, 2015 at Nadi, in the Western Division, penetrated the vagina of “DG”, with his finger, a child under the age of 13 years. 

16.	To prove count one the prosecution must prove the following elements of the offence of rape beyond reasonable doubt:

(a)		The accused;
(b)		Penetrated the vagina of the complainant “DG” with his finger; 
(c)		“DG” was below the age of 13 years.

17.	The slightest of penetration of the complainant’s vagina by the accused’s finger is sufficient to satisfy the act of penetration. As a matter of law a person under the age of 13 years does not have the capacity to consent.  In this case the complainant was 8 years and 4 months at the time of the alleged offending. I therefore direct you that consent of the complainant is not an issue in this trial. 

18.	The first element of the offence is concerned with the identity of the person who allegedly committed the offence. 

19.	The second element is the act of penetration of the complainant’s vagina by the accused with his finger. 

20.	The final element of the offence is the age of the complainant.  It is an agreed fact that the complainant was 8 years at the time of the alleged offending which establishes that she was below the age of 13 years at the time of the alleged incident.
 
21.	If you are satisfied that the accused had penetrated the vagina of the complainant with his finger then you must find the accused guilty of rape.  If on the other hand you have a reasonable doubt with regard to any of those elements concerning the offence of rape then you must find the accused not guilty of the offence of rape.

22.	In this trial the accused has denied committing the offence of rape he has been charged with.  It is for the prosecution to prove beyond reasonable doubt that it was the accused who had penetrated the vagina of the complainant with his finger.

23.	You must be satisfied that the prosecution has proved all the elements of the offence beyond reasonable doubt in order for you to find the accused guilty of the count. If on the other hand, you have a reasonable doubt with regard to any of those elements concerning the offence, then you must find the accused not guilty.  

24.	As a matter of law, I have to direct you that offences of sexual nature as in this case do not require the evidence of the complainant to be corroborated.  This means if you are satisfied with the evidence given by the complainant and accept it as reliable and truthful you are not required to look for any other evidence to support the account given by the complainant.

ADMITTED FACTS

25.	In this trial the prosecution and the defence have agreed to certain facts which have been made available to you titled as final admitted facts.

26	From the admitted facts you will have no problems in accepting those facts as proven beyond reasonable doubt and you can rely on it. The admitted facts are part of the evidence and you should accept these admitted facts as accurate, truthful and proven beyond reasonable doubt.

27.	I will now remind you of the prosecution and defence cases. In doing so it would not be practical of me to go through all the evidence of every witness in detail. It was a short trial and I am sure things are still fresh in your minds. I will refresh your memory and summarize the important features. If I do not mention a particular piece of evidence that does not mean it is not important. You should consider and evaluate all the evidence in coming to your opinion in this case.     
PROSECUTION CASE

28.	The prosecution called three witnesses to prove the charge against the accused.

29.	The complainant informed the court that on the day in question she was going home from town with her grandmother in a mini bus.  When they entered the bus there was one empty seat which her grandmother occupied.

30.	While she was standing the boy who was sitting beside her grandmother asked her grandmother if the complainant could sit on his lap.  Her grandmother agreed.  As the bus was travelling the complainant who was wearing a dress felt this boy touched her vagina with his finger from underneath her dress.  He kept on touching her vagina throughout the journey. When this boy inserted his finger into her vagina she felt bad after the bus stopped near her house this boy quickly left the bus.

31.	The complainant told her grandmother what this boy had done to her. Her grandmother responded by saying it may have been by accident that he may have touched her.  At home her grandmother informed her father. The matter was then reported to the police.

32.	In cross examination the complainant stated that her grandmother was sitting beside the boy and she was sitting on his lap.  The complainant was scared so she did not tell her grandmother what the boy was doing to her in the bus. The complainant maintained that the incident had happened and she had not fabricated it.

33.	The complainant was referred to line 30 of her police statement dated 14th August, 2015 which was read as:

“As soon as myself and my grandmother got off I personally told my grandmother whereby my grandmother tried to stop the van but it went off.”

34.	The complainant agreed saying in her evidence that when the mini bus had stopped near her house this boy had quickly walked out of the mini bus.  She explained her grandmother tried to stop the bus because when the bus had stopped her grandmother was taking out the groceries from the bus. Furthermore, this boy had left the bus without her grandmother knowing he had left so that was the reason why her grandmother tried to stop the bus.
 
35.	The complainant was also referred to line 23 and 24 of her police statement which was read as:
	“I could feel that he touched my vagina but on top of my dress”

36.	The complainant stated that the above statement was not true. 

	Madam and Gentlemen Assessors

37.	The learned counsel for the accused in this regard was cross examining the witness about some inconsistency in the statement she gave to the police immediately after the incident when facts were fresh in her mind with her evidence in court.  I will now explain to you the purpose of considering the previously made statement of the witness with her evidence given in court.  You are allowed to take into consideration the inconsistencies in such a statement when you consider whether the witness is believable and credible.  However, the police statement itself is not evidence of the truth of its contents.

38.	It is obvious that passage of time can affect one’s accuracy of memory.  Hence you might not expect every detail to be the same from one account to the next.
  
39.	If there is any inconsistency, it is necessary to decide firstly whether it is significant and whether it affects adversely the reliability and credibility of the issue that you’re considering.  If it is significant, you will need to then 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 influences your judgment about the reliability of the witness.

40.	The second witness was Sarda the grandmother of the complainant on 14th August, 2015 she had gone to town with the complainant to do some shopping.  After shopping they boarded a mini bus to go home.  Inside the bus the witness sat down with the complainant sitting beside her.  The witness had lots of groceries on her lap.  After a while the accused came inside the bus so the witness made the complainant stand up so that the accused could sit. 

41.	Since the complainant was standing the accused asked the witness to let the complainant sit on his lap.  The bus then left the town, at about 3pm the bus reached near their house.  The accused got out first followed by the witness and the complainant.  After the accused left, the complainant told the witness that the accused had put his hand inside her panty and he was fingering her. 

42.	The witness knows the accused since he was her neighbour.  She identified the accused in court.  The matter was reported to the police.

43.	In cross examination the witness agreed the mini bus she had boarded was a public transport.  She had lots of groceries on her lap so she did not see anything done by the accused to the complainant. She was informed by the complainant about what the accused had done when they got off the bus after the accused had left.  The complainant was in tears at this time.  The witness got angry when she was told about what the accused had done.

44.	The groceries were blocking the view of the witness so she did not see the accused put his hand inside the complainant’s vagina.  The matter was reported to the police the same day. 

Madam and Gentlemen Assessors 

45.	Victims of sexual offences may react in different ways to what they may have gone through.  Some in distress or anger may complain to the first person they see.  Some due to fear, shame or shock or confusion, may not complain for some time or may not complain at all.  A victim’s reluctance to complain in full as to what had happened could be due to shame or shyness or cultural taboo when talking about matters of sexual nature.

46.	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. It is a matter for you to determine what weight you would give to the fact that the complainant who was 8 years of age told her grandmother the accused had put his hand inside her panty and was fingering her immediately after she had got off the mini bus.  

47.	This is commonly known as recent complaint evidence. The evidence given by Sarda is not evidence of what actually happened between the complainant and the accused since Sarda did not see what had happened between the complainant and the accused.

48.	You are, however, entitled to consider the evidence of recent complaint in order to decide whether the complainant is a credible witness. The prosecution says the complainant told her grandmother the accused had inserted his hand inside her panty and fingered her immediately after getting off the mini bus and after the accused left therefore she is more likely to be truthful.  On the other hand, defence says Sarda did not see the accused doing anything to the complainant. Moreover, the accused was sitting close to Sarda in the mini bus which was full of people the complainant did not raise any alarm or complain to the grandmother about what the accused was doing since nothing had happened. 

49.	It is for you to decide whether the evidence of recent complaint helps you to reach a decision.  The question of consistency or inconsistency in the complainant’s conduct goes to her credibility and reliability as a witness.  This is a matter for you to decide whether you accept the complainant as reliable and credible. The real question is whether the witness was consistent and credible in her conduct and in her explanation of it.

50.	The final prosecution witness was Dr. Terry Fesaitu who graduated with a MBBS from the University of Otago in 2012.  This is his 7 year of practice as a Medical Practitioner.  On 14th August, 2015 the doctor had examined the complainant at the Nadi Hospital.  The Fiji Police Medical Examination form of the complainant was marked and tendered as prosecution exhibit No. 1.
51.	The initial impression of the patient by the doctor was that the patient was comfortable but apprehensive that is she looked worried and scared. The specific medical findings by the doctor were.
(a)	   Perforated hymen superiorly appeared erythematous;
(b)	   No external bruising or laceration in surrounding area;
(c)	   No bleeding noted.
52.	The doctor explained the hymen was a thin sheet that surrounded and partially covered the opening to the vagina. Perforated meant there was a hole or a tear in the hymen.  Superiorly meant the location of the tear was at the top of the hymen.  Erythematous meant abnormal redness of the skin of the mucosa tissue

53.	The professional opinion of the doctor was that the perforated hymen/tear in the hymen in the patient’s case can be explained by trauma.  Trauma meant any force which acts on a surface which can be either sharp or blunt trauma.

54.	The doctor stated that he had made a diagram on page 5 of the medical examination form of the genitalia examination of what he had seen on the complainant.

55.	In cross examination the doctor stated that this case was the second one he had attended to at Nadi Hospital in 2015 and that he was not specialized in this area of medicine.  The doctor explained the hymen can be torn in situations such as vigorous activities, horse riding or vigorous exercise, trauma self-inflicted, finger insertion in the vagina or use of foreign objects, and sports activity.

56.	The doctor agreed that it was stated at A4 of the medical examination form under background information that the patient was sexually assaulted by an unknown Indian man.  When it was suggested that the tear in the perforated hymen was not caused by penetration of finger but by vigorous activities, the doctor explained being active did not mean it has to be vigorous for someone to be vigorously engaged in activities such as horse riding does not mean there will be a spontaneous tear of the hymen.

57.	The doctor stated that he wrote the patient was comfortable in the sense that she was not in any distress or any pain at the time of the examination.  In respect of the patient being apprehensive the doctor stated the child was brought in to be examined by strangers and any child would feel scared and worried.

58.	In re-examination the doctor clarified that he was trained to manage special cases and where there was any doubt or he was not sure of anything they had the opportunity to discuss with the hospital’s specialty registrars on call or with senior doctors. In this case the doctor had asked one of his senior colleagues Dr. Jenyo for a second opinion and he had also examined the child with Dr. Jenyo.

59.	The doctor also stated A4 background information was filled by the Police Officer at the time the complaint was lodged.  He further explained just because a child was active in school did not mean that they are prone to having a tear in the hymen.  The hymen can only be torn if the activity was strenuous or vigorous so things such as walking around or being active does not necessarily mean it can tear a hymen.  The activities involved should be strenuous to cause some sort of trauma or tear to the hymen.  	
Madam and Gentlemen Assessors

60.	You have heard the evidence of Dr. Fesaitu who had been called as an expert on behalf of the prosecution.  Expert evidence is permitted in a criminal trial to provide you with information and opinion which is within the witness expertise.  It is by no means unusual for evidence of this nature to be called and it is important that you should see it in its proper perspective.  The medical report of the complainant is before you and what the doctor said in his evidence as a whole is to assist you.

61.	An expert witness is entitled to express an opinion in respect of his or her findings and you are entitled and would no doubt wish to have regard to this evidence and to the opinions expressed by the doctor. When coming to your own conclusions about this aspect of the case you should bear in mind that if, having given the matter careful consideration, you do not accept the evidence of the expert you do not have to act upon it.  Indeed, you do not have to accept even the unchallenged evidence of the doctor.

62.	You should remember that this evidence of the doctor relates only to part of the case, and that whilst it may be of assistance to you in reaching your decisions, you must reach your decision having considered the whole of the evidence. 
	
	Madam and Gentlemen Assessors

63.	At the end of the prosecution case you heard me explain options to the accused. He has those options because he does not have to prove anything. The burden of proving the accused guilt beyond reasonable doubt remains on the prosecution at all times.  The accused chose to give evidence and called one witness so you must take into account what the defence adduced in evidence through the accused and defence witness when considering the issues of fact which you are determining.

64.	I now draw your attention to the evidence adduced by the defence during the course of the hearing. 

65.	The accused informed the court that he had went for shopping on 14th August, 2015 with his mother at Nadi Town.  After buying groceries they went to board the mini bus from the town end.  When he entered the bus there was only one space available so he told his mother to sit in that space, however, he remained standing. The driver saw the complainant sitting at the back seat with her grandmother so the driver asked the grandmother whether she will pay the little girl’s fare. The grandmother replied she will not pay the fare and then the grandmother told the girl to stand up. The accused then occupied the empty seat.  

66.	The accused had a lot of groceries in his hand so the grandmother shifted and made the girl stand beside her. He shifted so that the complainant could sit beside him. The complainant was sitting between the accused and her grandmother. After this the bus left the town. 

67.	The accused said his mother sat at the second last seat in the bus.  The accused denied touching the complainant’s vagina and penetrating her vagina with his finger. 

68.	In cross examination the accused disagreed that he asked the grandmother to allow the complainant to sit on his lap because he had a lot of groceries in his hand so how could he ask the grandmother to let the complainant sit on his lap. When suggested that the accused did not have any groceries on his lap he stated that he came to do shopping in town. The accused denied putting his hand underneath the complainant’s dress and had penetrated his finger into the complainant’s vagina. He did not quickly leave the bus it was his mother who had left the bus first and then he followed her out. 

69.	The final defence witness was the mother of the accused Sarita Devi.  She informed the court that she had gone shopping with the accused after work on the 14th of August, 2015.  After shopping they boarded the Dominion Transport bus.  The bus was full she was seated at the second last seat the accused was standing in the bus.  After some time the driver saw the accused standing so he asked the grandmother whether she had paid the fare for the complainant.  

70.	The grandmother asked the complainant to stand up.  There was space for the accused the grandmother was sitting in the last seat beside the window. The accused sat beside the grandmother and the complainant.  The witness and the accused got off at the junction near her home. The witness spoke with the accused during the trip asking the accused whether the groceries in his hands were heavy. The accused said it was okay he can take all the groceries. 

71.	In cross examination the witness stated that she had groceries in her hand and the accused also had some groceries in his hands.  The witness agreed the accused sat next to the grandmother she maintained that the complainant did not sit on the accused lap since he had lot of groceries on his lap. The witness stated that she had gone out of the bus first and that it was incorrect to say that the accused had run out of the bus. 

DEFENCE CASE

72.	The accused takes up the position that he did not penetrate the vagina of the complainant with his finger as alleged. The complainant had fabricated this allegation she was not sitting on the lap of the accused at any time in the bus but was sitting between the accused and her grandmother.  The complainant did not inform her grandmother in the bus about what the accused was doing to her and also she did not raise any alarm since nothing had happened. 

73.	This was the defence case. 

ANALYSIS

74.	The prosecution alleges on 14th August, 2015 the complainant was standing in the mini bus beside her grandmother. The accused who was sitting beside the complainant’s  grandmother asked  for the complainant to sit on his lap.  During the journey the complainant who was wearing a dress felt the accused touch her vagina with his finger from underneath her 	dress.  

	He kept on touching her vagina throughout the journey.  When the mini bus stopped near her house the accused quickly went out of the mini bus.  The complainant told her grandmother what the accused had done to her. 

75.	Inside the bus Sarda the grandmother of the complainant sat with the complainant sitting beside her.  The witness had lots of groceries on her lap.  After a while the accused came inside the bus so the 	witness made the complainant stand up so that the accused could sit. 

76.	Since the complainant was standing the accused asked the witness to let the complainant sit on his lap.  At about 3pm the bus reached near their house the accused got out first followed by the witness and the complainant.  After the accused left, the complainant told the witness that the accused had put his hand inside her panty and he was fingering her. 

77.	The complainant was medically examined the same day after the matter was reported to the police.  The doctor stated that the complainant had a perforated hymen which meant there was blunt force used on the vagina of the complainant. 

78.	The defence on the other hand denies the allegation saying it was a fabrication by the complainant since she was not sitting on the lap of the accused during the journey but between the accused and the grandmother. If there was anything done by the accused the complainant would have immediately informed her grandmother who was sitting beside the complainant.   Furthermore, defence says the accused had lots of groceries on his lap therefore it was not possible of him to penetrate his finger into the vagina of the complainant as alleged.   

	Madam and Gentlemen Assessors

79.	You have seen all the witnesses giving evidence keep in mind that some witnesses react differently when giving evidence.

80.	Which version you are going to accept whether it is the prosecution version or the defence version is a matter for you.  You must decide which witnesses are reliable and which are not.  You observed all the witnesses giving evidence in court.  You decide which witnesses were forthright and truthful and which were not.  Which witnesses were straight forward? You may use your common sense when deciding on the facts.  Assess the evidence of all the witnesses and their demeanour in arriving at your opinions.
81.	In deciding 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. You can accept part of a witness’s evidence and reject other parts. A witness may tell the truth about one matter and lie about another, he or she may be accurate in saying one thing and not be accurate in another.     

82.	You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charge against the accused have been proven beyond reasonable doubt. In evaluating evidence, you should see whether the story related in evidence is probable or improbable, whether the witness is consistent in his or her own evidence or with his or her previous statement or with other witnesses who gave evidence. It does not matter whether the evidence was called for the prosecution or the defence. You must apply the same test and standards in applying that. 

83.	It is up to you to decide whether you accept the version of the defence and it is sufficient to establish a reasonable doubt in the prosecution case.

84.	If you accept the version of the defence you must find the accused not guilty. Even if you reject the version of the defence still the prosecution must prove this case beyond reasonable doubt. Remember, the burden to prove the accused’s guilt beyond reasonable doubt lies with the prosecution throughout the trial and it never shifts to the accused at any stage of the trial.

85.	The accused is not required to prove his innocence or prove anything at all. He is presumed innocent until proven guilty.

86.	Your possible opinions are:-		
Count One:		RAPE: GUILTY OR NOT GUILTY.

Madam and Gentlemen Assessors
87.	This concludes my summing up you may now retire and deliberate together 	and once you have reached your individual opinions please inform a 	member of my staff so that the court can be reconvened.

88.	Before you do so, I would like to ask counsel if there is anything they might 	wish me to add or alter in my summing up.

Sunil Sharma
Judge

Solicitors
Office of the Director of Public Prosecutions for the State.
Messrs Iqbal Khan & Associates for the Accused.