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Chandra v State [2019] FJCA 160; AAU179.2016 (2 August 2019)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU 179 OF 2016
(High Court Action No: HAC 11 of 2016)

BETWEEN:

RAJNIL NAVIN CHANDRA
Appellant

AND:

THE STATE

Respondent

Coram : Chandra, RJA

Counsel : Mr A Sen for Appellant

Ms S Kiran for Respondent

Date of Hearing : 14 June 2019

Date of Ruling : 2 August 2019

RULING

[1] This is an application seeking leave to appeal and bail pending appeal.

[2] The Appellant was charged with one count of rape contrary to section 207(1)(2)(a) of the Crimes Act, 2009.

[3] The Appellant was convicted after trial in the High Court and was sentenced on 25^th November 2016 for a term of 13 years imprisonment with a non-parole term of 10 years.

[4] In his notice of appeal which was timely the following grounds of appeal were set out:

(i) The Learned Judge erred in law and in fact in failing to allow the counsel for the Appellant to cross-examine the complainant on the circumstances surrounding the commission of the purported offence and after the commission of the purported offence that was integral to the defence of the Appellant.

(ii) The Learned Trial Judge erred in law and in fact in not dealing adequately and/or properly and/or sufficiently on defence evidence and not identifying what evidence could corroborate the defence.

(iii) That the Learned Trial Judge erred in law and in fact in misdirecting and/or not properly and/or sufficiently himself on recent complaint, medical certificate.

(iv) That the Learned trial Judge erred in law and in fact in failing to analyse the evidence and direct himself in accordance with the summing up and in failing to direct himself in accordance with the evidence in particular the time and place where the alleged was committed.

(v) That the Learned Trial Judge imposed the sentence which was harsh, excessive and unconscionable and further took into consideration irrelevant matters and failed to take into consideration relevant matters.

(vi) That the Learned Trial Judge erred in law in failing to correctly apply the principles of sentencing before setting a minimum term to be served before pardon may be considered.

(vii) That the Learned Trial Judge took into consideration irrelevant matters and further matters which were not in evidence and failed to take into consideration relevant matters when sentencing the appellant to thirteen years and ten years non-parole period.

[5] In his affidavit filed in support of his application for bail pending appeal, he has stated that he has been assaulted on several occasions without any reasons or access to medical care and had severe injuries and had requested an investigation and that he be shifted from Korovou Prison. He has also stated that his appeal has all likelihood of succeeding and that his appeal may not be heard during his prison term.

[6] The Assistant Superintendent of Corrections, of the Fiji Corrections Services Headquarters in Suva has filed an affidavit in response stating that the Appellant was not assaulted on several occasions as claimed by him, but that on one occasion the Appellant had been involved in an altercation with the Corrections Officer where he claimed that he had been assaulted by the said Officer. He states further that the Appellant had been taken to the Lami Health Centre for a medical examination and the medical card filed after being treated did not have any signs of any serious injury. Further than an internal investigation had been carried out regarding his complaint of assault, and that the altercation between the Appellant and the correction officer had been as a result of the appellant’s non-compliance with the instructions given to him. Copies of the medical card and the investigation report were annexed to the affidavit.

[7] In an application for bail pending appeal the threshold that has to be met is higher than in application seeking bail pending trial. There should be a likelihood of the success of the appeal.

[8] In Ratu Jope Seniloli, & Others v The State (Criminal Appeal No.AAU0041/04S. High Court Cr. Appeal No.002S/003, 23 August 2004) it was held that bail pending appeal may be granted where there are exceptional circumstances.

[9] An allegation of being assaulted as alleged by the Appellant regarding which an investigation had been done and a medical report which was produced showing that there was no serious injury would not be sufficient to establish exceptional circumstances.

[10] The other consideration is to see whether there is a likelihood of the success of the appeal.

[11] Seven grounds of appeal have been adduced on behalf of the Appellant. Of these, the first four grounds are against conviction while the other three grounds are against sentence.

[12] The first ground of appeal is regarding the learned Trial Judge’s failure to allow Counsel for the Appellant to cross-examine the complainant on the circumstances surrounding the commission of the purported offence and after the commission of the purported offence which is claimed to be integral to the defence of the Appellant.

[13] This ground of appeal to be considered requires the record of evidence in the trial which is not available at present. Further, it is a general complaint without setting out the questions that were put in cross-examination by Counsel. In such circumstances it would be necessary to see the evidence of the complainant in considering whether leave should be granted or to consider whether there is a likelihood of success of the ground of appeal.

[14] I would consider leaving the question of leave on this ground to the Full Court when the entire record is available. Therefore I would grant leave on this ground.

[15] The second ground of appeal is based on the manner in which the learned Trial Judge had dealt with the defence evidence.

[16] It has been submitted that the Learned Trial Judge had not put the answer of the accused in the correct context when addressing the Assessors at paragraph 61 of the summing up.

[17] In paragraph 61 of the summing up the learned trial Judge had narrated the question 86 that was asked from the Appellant during his caution interview about inserting his penis forcefully into the vagina of the victim which the Appellant had answered in the affirmative.

[18] The submission that the learned Judge had not put the answer in the correct context has no basis.

[19] Considering the entirety of the summing up, the learned Trial Judge had dealt with the defence case adequately, when the defence that was taken up was one of consent by placing before the Assessors the position of the Appellant in a detailed manner.

[20] In view of this position this ground of appeal is not arguable.

[21] Although grounds 3, 4 and 5 were formulated no submissions have been made regarding those three grounds.

[22] In his oral submissions at the hearing of the application for leave to appeal, Counsel for the Appellant submitted that the directions on consent were inadequate, that the summing up was in an incorrect context, that there were misdirections in paragraphs 74,76, 77 and 82 of the summing up.

[23] It would appear that the learned Trial Judge in the paragraphs mentioned was narrating the evidence that had transpired at the trial and were not conclusions that he had arrived at regarding the evidence as submitted by Counsel for the Appellant. I would consider the summing up as being adequate and balanced.

[24] Regarding the sentence, the grounds of appeal are based on the starting point and the consideration of the aggravating factors.

[25] The learned trial Judge in his sentencing Judge referred to the decision in Mohammed Kasim v The State Fiji Court of Appeal Criminal Case No.14 of 1993; 27 May 1994 where tariff for rape of an adult was placed between 7 to 15 years.

[26] Two decisions of the High Court, State v Rahula Ritesh Chand, High Court Criminal HAC No.043 of 2013 and State v Mohammed Ibrahim, Labasa High Court Criminal Case HAC No.031 of 2012 where the starting point taken for sentencing had been 7 years.

[27] The starting point of 10 years chosen by the learned Trial Judge in the present case is in the mid-range of the tariff of 7 to 15 years. He added 3 years and 6 months for the aggravating factors.

[28] The aggravating factors set down by the learned Trial Judge would be relevant in the circumstances of the case. However, the starting point of sentencing chosen by the Learned Trial Judge would be somewhat high and therefore I would grant leave on that basis.

[29] In considering the application for bail pending appeal, though I have granted leave on ground 1 and the grounds of appeal against sentence on the basis that they are arguable, there is no likelihood of success of these grounds at the full hearing. Further, there are no exceptional circumstances which can be considered to grant bail pending appeal.

Orders of Court:

1. Leave to appeal is granted on ground 1 of the grounds of appeal against conviction.
2. Leave to appeal is granted against sentence.
3. Application for bail pending appeal is refused.
   

Hon. Justice Suresh Chandra

RESIDENT JUSTICE OF APPEAL