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Kumar v State [2017] FJCA 6; AAU0140.2015 (7 February 2017)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court of Fiji]

CRIMINAL APPEAL NO:AAU0140 of 2015

[High Court Case No: HAC157 of 2012]

BETWEEN : MANOJ KUMAR
Appellant

AND : THE STATE
Respondent

Coram : Hon. Mr. Justice Daniel Goundar

Counsel : Mr M Yunus for the Appellant
Mr L J Burney for the Respondent

Date of Hearing : 2 February 2017

Date of Ruling : 7 February 2017

RULING

[1] Following a trial in the High Court at Suva, the appellant was convicted of two counts of rape and sentenced to a total term of 12 years’ imprisonment with a non-parole period of 10 years. This is a timely application for leave to appeal against both conviction and sentence pursuant to section 21(1) (b) and (c) of the Court of Appeal Act, Cap 12. The test for leave to appeal against conviction is whether the appeal is arguable (Naisua v State unreported Cr App No CAV0010 of 2013; 20 November 2013). The test for leave to appeal against sentence is whether there is an arguable error in the exercise of the sentencing discretion (Naisua v State unreported Cr App No CAV0010 of 2013; 20 November 2013).

[2] Both charges involved the same victim. The appellant is the victim’s father-in-law. When the alleged incidents arose, the victim was living with her in-laws. The victim’s evidence was that on 18 October 2010, the appellant took his wife to a medical clinic. After a while the appellant returned home without his wife. He offered to massage the victim, saying she looked sick. He grabbed her by her hands and took her to his bedroom. He had sexual intercourse with her. She did not consent.

[3] The second incident arose ten days later, on 28 October 2010. At around 9 am, the appellant called his wife to come to his work place to assist him. She left home at about 11 am. Around 12.30 pm, the appellant came home alone. The victim was at home. The appellant’s elderly father-in-law was also at home. The appellant accompanied his father-in-law to a neighbour’s house. After a while, the appellant returned home alone and went and had his shower. The victim was in her bedroom. The appellant entered her bedroom and closed the door. He prevented the victim from leaving the room when she tried to leave. He pushed her on the bed and had sexual intercourse with her. The victim said she was in pain and in tears. Evidence was led from the victim’s mother who said that on one occasion before the alleged incidents, the appellant brought the victim to her home and massaged the victim saying she was in pain.

[4] The appellant gave evidence. He said that at the time of the first alleged incident he was at his work place. On that day, he returned home at about 10 pm. On the date of the second alleged incident, he was in his office but returned home at about 2.45 pm to repair his vehicle with the assistance of his neighbour, Raj Dev. Raj Dev was called by the defence, but his evidence was that he did not meet the appellant on 28 October 2010. The appellant’s son gave evidence. His evidence was that he was having matrimonial problems with the victim because she did not want to live with her in-laws but with her parents.

[5] The grounds of appeal are:

Ground 1 – The Learned Trial Judge erred in law and in fact when he misdirected the assessors that ‘it is desirable that you reach unanimous opinion; that is, an opinion on which you all agree however the final decision of facts rest with me’ causing substantial miscarriage of justice to your appellant.

Ground 2 – The Learned Trial Judge erred in law and in fact when he misdirected that assessors that ‘demeanour in Court is not necessarily a clue to the truth of the witness’s account’ causing substantial prejudice to the appellant.

Ground 3 – The Learned Trial Judge erred in law and in fact by convicting your appellant for the offence despite no medical evidence to prove of the same.

Ground 4 – The Learned Judge has failed to direct the Assessors in respect of the defence of alibi, that the prosecution must disprove the defence of alibi and even if the assessors concluded that the defence was false, that does not by itself entitle them to convict the appellant.

Ground 5 – The Learned Trial Judge erred in law and in fact when he failed to direct the assessors what weight to be attached to prior inconsistent evidence of the complainant.

Ground 6 – The Learned Trial Judge erred in law and in fact when he misdirected the assessors on the burden of prove (sic) in respect of consent, when he said that; ‘the prosecution does not have to prove that the complainant communicated her lack of consent by resisting the accused physically or by shouting at him’.

Ground 7 – The Learned Trial Judge erred in principle and also erred in exercising his sentencing discretion to the extent that the non-parole period is too close to the head sentence which conflicts with the provision of section 27 of the Prison and Correction Service Act 2006.

[6] Role of the assessors

The appellant’s contention is that the trial judge misdirected on the role of the assessors when he informed them that the judge is the final finder of the facts. The impugned direction is contained in paragraph 6 of the summing-up. In support of his argument, counsel for the appellant cites the summing-up delivered in State v Sadrugu Criminal Case No HAC116.2011L (3 March 2015) where the trial judge informed the assessors of their role in deciding the facts as follows:

Please bear in your mind that you and you alone are the judges of facts. Therefore, you will have to decide on facts and such decision on facts cannot be made by anyone else other than each one of you (paragraph 3).

[7] Counsel for the State submits that the direction that informs the assessors that the trial judge is the ultimate fact finder is correct and conforms to section 237(2) of the Criminal Procedure Decree 2009. I agree. Section 237(2) that states ‘the judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors’. The summing-up delivered in Sadrugu which has no binding effect is not a useful authority. It has to be borne in mind that the role of the assessors is not the same as the jury. In Fiji, the statutory provision is clear. The verdict is given by the judge and not the assessors. Regardless of what the opinions of the assessors are, the ultimate decision as to guilt lies with the trial judge. As Keith JA observed in Chandra v State unreported Criminal Petition No. CAV 21 of 2015; 10 December 2015, ‘[I] agree, of course, that since the trial judge is the ultimate finder of the facts, he has to evaluate the evidence for himself, and come to his own conclusion on the guilt or otherwise of the defendant’ (at [36]). Ground one is unarguable.

[8] Demeanour of witnesses

The appellant’s contention is that the trial judge misdirected by informing the assessors that the demeanour of witnesses in court is not necessarily a clue to the truth of witness’s account. Counsel for the appellant submits that the demeanour of a witness is an important matter for the assessors to consider when evaluating a witness’s credibility, citing Natakuru v State unreported Cr App No AAU0093/2006; 14 July 2006 as the authority.

[9] In the present case, the trial judge clearly informed the assessors that it was for them to decide whether a witness was telling the truth. He said that many factors may be considered in deciding what evidence is credible and reliable. He gave examples of how credibility is to be assessed in paragraphs [13]-[14] of the summing-up. At no stage, the trial judge suggested that demeanour was irrelevant when evaluating a witness’s credibility. What the trial judge said to the assessors is that they should not evaluate credibility based on demeanour only. They should also consider the court environment that can be daunting for some witnesses and the nature of the evidence the witnesses had to give. In my judgment, the direction on the demeanour was perfectly correct. This ground is unarguable.

[10] Lack of medical evidence

I agree with counsel for the State that this ground of appeal is wholly misconceived. At trial, there was no medical evidence led. If there was an issue regarding the lack of medical evidence, then it should have been taken with the trial judge. The prosecution was not required to lead medical evidence to prove the charges of rape, and by not taking any issue at the trial, the appellant is barred from complaining on appeal.

[11] Inadequate direction on Alibi

The appellant’s contention is that the direction on alibi was inadequate. Counsel for the appellant submits that when an accused raises an alibi as his defence, the trial judge should inform the assessors that the prosecution must disapprove the alibi and that even if they conclude that the alibi was false, that does not itself entitled to convict the accused.

[12] In all criminal trials, the burden to prove guilt of an accused rests on the prosecution even when the accused has raised a legal defence. The essence of any direction on the defence of alibi must encapsulate that there is no burden on the appellant to prove it (Rex v Anderson [1991] Crim L R 361). The trial judge dealt with the defence of alibi in paragraphs [92]-[94] of the summing-up as follows:

[92] The accused had relied on a specific defence called alibi#160;in his answer swer to the two rape counts. What he says is that he was not at his home at the time the complainant says he committed acts of rape, butat hik place. It is upis up to the prosecution to disprove the&#the , and not for the ache accused to prove. He is under no legal requirement to prove anything. He could have even remained silent. If you find his evidence; that he was at his work place, edible, then you must find find him not guilty of the two counts, as the prosecution had failed to prove identity of the rapist.