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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 115 of 2019
[In the High Court at Lautoka Case No. HAC 75 of 2016]
BETWEEN:
AFZAL KHAN
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, ARJA
Counsel: Mr. D. S. Naidu for the Appellant
: Mr. R. Kumar for the Respondent
Date of Hearing: 20 December 2021
Date of Ruling: 21 December 2021
RULING
[1] The appellant had been indicted in the High Court at Lautoka on one count of rape contrary to section 207 (1) and (2) (a) of the Crimes Act, 2009 committed on 26 March 2016 at Nadi in the Western Division.
[2] The information read as follows.
‘Statement of Offence
RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
AFZAL KHAN, on the 26th&day ;day of March, 2016 at Nadi in the Western Division penetrated the vagina of NAZIMUN NISHRL #160;with his penis withor her consent.
[3] At the end of the summing-up, the assessors had unanim opined that the appellant was not guilty. The learned trial judge had disagreed with the athe assessors’ opinion, convicted the appellant and sentenced him on 09 July 2019 to 11 years, 10 months and 15 days of imprisonment (after the remand period was deducted) with a non-parole period of 10 years.
[4] The appellant in person appealed against conviction in a timely manner (14 January 2019) against sentence followed by additional/amended grounds against conviction. M/s Pilai, Naidu & Asses had thereafter tendered ered amended grounds of appeal against conviction and sentence on 12 October 2020. Thus, the sentence appeal is out of time by about 01 year and 02 months but no application for enlargement of time had been sought to appeal against sentence out of time. The appellant’s written submissions had been tendered on 15 February 2021 and the state had responded on 18 November 2021.
[5] In terms of section 21(1)(b) of the Court of Appeal Act, the appellant could appeal against conviction only with leave of court. The test in a timely appeal for leave to appeal against conviction is ‘reasonable prospect of success’ [see Caucau v State [2018] FJCA 171; AAU0029 of 2016 (04 October 2018), Navuki v State [2018] FJCA 172; AAU0038 of 2016 (04 October 2018) and State v Vakarau [2018] FJCA 173; AAU0052 of 2017 (04 October 2018), Sadrugu v The State [2019] FJCA 87; AAU 0057 of 2015 (06 June 2019) and Waqasaqa v State [2019] FJCA 144; AAU83 of 2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 (15 July 2014) and Naisua v State [2013] FJSC 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds [see Nasila v State [2019] FJCA 84; AAU0004 of 2011 (06 June 2019)].
[6] This court would apply the criteria outlined in Rasaku v State&CAV0009, 0013 of 2009: 24 April 2013 [2013] FJSC 4 and Kumarate; Sinu v Stat State/b>&#AV0001 of 2009: 209: 21 August 2012 [2012] FJS/a> fe belated sentence appeal. Thus, the factors to s to be cobe considered in the matter of enlargement of time are (i) the reason for the failure to file within time (ii) the length of the delay
(iii) whether there is a ground of merit justifying the appellate court's consideration
(iv) where there has been substantial delay, nonetheless is there a ground of appeal
that will probably succeed? (v) if time is enlarged, will the respondent be unfairly prejudiced?
[7] Generally, where the delay is minimal or there is a compelling explanation for a delay, it may be appropriate to subject the prospects in the appeal to rather less scrutiny than would be appropriate in cases of inordinate delay or delay that has not been entirely satisfactorily explained [vide Lim Hong Kheng v Public Prosecutor [2006] SGHC 100)].
[8] The delay of the sentence appeal (about 01 year and 02 months) is very substantial. The appellant had not explained in an affidavit the reason for the delay. Nevertheless, I would now see whether there is a real prospect of success for the belated grounds of appeal against sentence in terms of merits [vide Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019]. The respondent has not averred any prejudice that would be caused by an enlargement of time.
[9] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King [1936] HCA 40; (1936) 55 CLR 499, Kim Na v Thte C160;Criminriminal ApNo.AAUo.AAU0015 and Chirk King Yam v The State Cri Appeal No.AAU0095 of 20of 2011). The test for leave to appeal is not whether the sentence is wrong in law but whether the grounds of appeal against sentence aruable points under the four principles of Kimu>Kim Nam < case. For and of appeal peal timely preferred against sentence to be considered arguable there must be a reasonable prospect of its success in appeal
(i) Acted upon upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.
The groundrounds of appeal urged on behalf of the appellant against conviction are as follows.
‘Conviction
Ground a
THAT the Learned Trial Judge erred in law and in fact in not adequately directing himself that the prosecution evidence before the court proved beyond reasonable doubts that there were serious doubts in the prosecution case and as such the benefit of doubt ought to have been given to the appellant.
Ground b
THAT the Learned Trial Judge erred in law and in misdirecting himself on the significance of the conflicting evidence of the complainant during the trial.
Ground c
THAT the Learned Trial Judge erred in law and in fact in failing to direct himself on the significance of the conflicting evidence of the prosecution witness.
Ground d
THAT the Learned Trial Judge erred in law and in fact in convicting the appellant or applicant after relying on inadmissible evidence.
Ground e
THAT the Learned Trial Judge erred in law and in fact in not taking into account serious conflict evidence in the prosecution case.
Ground f
THAT the Learned Trial Judge erred in law and in fact by failing to accept the unanimous opinion of the assessors that the appellant was not guilty of the offence of Rape and that such refusal of the trial judge not to concur with the unanimous opinion of the assessors was demonstrably perverse, unsafe and unsatisfactory.
Ground g
THAT the Learned Trial Judge erred in law and in fact in relying on and/or taking into account inadmissible and/or prejudicial evidence in finding the Appellant guilty
Ground h
THAT the Learned Trial Judge failed to direct or misdirected himself that the manner of commission of the offense by the Appellant was near impossible having regard to all the circumstances of the case.
Ground i
THAT the Learned Trial Judge erred in law and in fact by declining to accept the unanimous opinion of the assessors as being the more acceptable and consistent opinion having regard to the prosecution evidence and that such refusal by the Judge resulted in a conviction which is unsafe and perverse considering all the circumstances of the case.
Ground j
THAT the Learned Judge failed to direct himself or misdirected himself as to the medical evidence produced by the prosecution in convicting the appellant.
Ground k
THAT the Learned Trial Judge erred in law and in fact in failing to direct his mind and/misdirected himself as to the conflicting evidence of the complainant and the prosecution witnesses in convicting the appellant.
Ground l
THAT the Learned Trial Judge erred in law and in fact by not properly having regard to the flaws in the prosecution reconstruction of the scene of the alleged rape more particularly having regard to the statement given by the complainant and the other prosecution witnesses immediately after the alleged offence.
Ground m
THAT the Learned Trial Judge in overturning the unanimous opinion of the assessors erred in law and in fact by taking an objective and not a subjective approach to the prosecution evidence thereby showing bias against the appellant.
Ground n
THAT the Learned Trial Judge erred in law and in fact in his summing up which was biased and contrary to the evidence adduced by the prosecution and the defence during the trial.
Ground o
THAT the Learned Trial Judge erred in law and in fact in directing the assessors to disregard the evidence of the complainant from the assessors when the complainant described how the alleged rape was committed.
Sentence
Ground a
THAT the sentence is manifestly harsh and excessive and wrong in principal in all the circumstances of the case.
Ground b
THAT the Learned Judge took irrelevant matters into consideration when sentencing the appellant.
Ground c
THAT the appellant reserves his rights to add to the above grounds of appeal upon receipt of the court records in this matter.
[11] The trial judge had summarized the prosecution evidence in the sentencing order as follows.
‘2. The brief facts were as follows:
On 26th March, 2016 out 3.30pm the the victim Nazimun Nisha Khirul was alone at her home at Mulomulo, Nadi when the accused also known as Munna theher in law of the victim forcefully entered her house by kicking the front door open.
[12] The appellant had given evidence and denied raping or assaulting the complainant and stated that he did not know the reason why the complainant had made this allegation against him. He had also called four witnesses to give evidence on his behalf.
[13] At the outset in must be mentioned that drafting of grounds of appeal leaves much to be desired. Many grounds are repetitive, some are obscure and some are not properly articulated or elaborated. This court had on many occasions cautioned appellate counsel against poor drafting of grounds of appeal but regrettably the unhealthy practice seems to continue and some counsel carry on regardless making this court’s task that much more difficult.
[14] When the trial judge disagrees with the majority of assessors he should embark on an independent assessment and evaluation of the evidence and must give ‘cogent reasons’ founded on the weight of the evidence reflecting the judge’s views as to the credibility of witnesses for differing from the opinion of the assessors and the reasons must be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial [vide Lautabui v &#/b> [2009] FJSC 7; CAV0024.2008 (6 February 2009), Ram v State<[2e">[2012] FJSC 12; CAV0001.2011 (9 May 2012), Chandra 㺼#1160;State>; [2015] FJSC 32; CAV21.2015 (10 December ,Bavuka v State [2019] FJCA 209; AAU58.2015 (3 October 2019) and Singh v State&#/b0; [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020) and Fraser v State [2021] FJCA 185; AAU014 (5 May 2021)].
[
[15] The test for the appellate court in approaching a decision of the trial judge taken against the assessors’ opinion has been set out as follows in Kumar v State [2021] FJCA 243; AAU0009.2019 (29 October 2021).
‘[15] The question for an appellate court would be whether or not upon the whole of the evidence
Ground of appeal (a) to (i)
[16] The gist of these grounds of appeal consists of alleged discrepancies and inconsistencies in the prosecution case (between the complainant PW1 and her daughter PW2) and the trial judge’s alleged failure to adequately direct the assessors and himself on those.
[17] More specifically, they refer to whether PW1 was dragged or carried by the appellant, her claim that she urinated and later vomited and her not having informed her former husband Azad that the appellant had just raped her. It appears that the trial judge had in fact directed the assessors on these matters at paragraphs 33, 37, 45, 48, 49, 50, 51, 57, 67 and 70-73 of the summing-up. He had also directed the assessors at paragraphs 70-72 as to how inconsistencies should be evaluated.
[18] The trial judge had also considered the same issues at paragraphs 16-18 of the judgment and held at paragraph 42 that the discrepancies and inconsistencies did not go to the root of the evidence of PW1 and PW2. I do not see a compelling reason to disagree with the judge. The trial judge had basically traversed all the other issues raised by the appellant under these grounds of appeal in the summing-up and/or the judgment. I shall not refer to each of those complaints here.
[19] Are the alleged omissions, inconsistences or improbabilities in the prosecution evidence pointed out by the appellant so material
as to affect the credibility of the complainant. The test for evaluation of any alleged improbabilities, omissions, contradictions
and inconsistences is whether they go to the root of the prosecution case as to discredit the complainant [see Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] AIR 753, 1983 SCR (3) 280, Nadim v State
[20] A trial judge is not expected to repeat everything he had stated in the summing-up in the judgment even when he disagrees with
the majority of assessors as long as he had directed himself on the lines of his summing-up to the assessors. Then the summing-up
becomes part and parcel of the judgment [vide Fraser v State [2021] FJCA 185; AAU128.2014 (5 May 2021)]. In Fiji, the assessors are not the sole judge of facts. The judge is the sole judge of fact in respect
of guilt, and the assessors are there only to offer their opinions, based on their views of the facts and it is the judge who ultimately
decides whether the accused is guilty or not [vide Rokonabete&##160;v St;v State [2006] FJCA 85; AAU0048.2005S (22 March 2006),&#b>aya v. The State [2015] FJSC 30; CAV 009 of 2015 (23 October 2015] and Rokopeta v
[21] In my view, itopen e tridge to e to have have convicted the appellant on the totaliotality of evidence and in the process the judge had indeed given cogent reasons founded on the weight of the evidence reflecting his views as to the credibility of witnesses for differing from the opinion of the assessors and the reasons thus given, in my view, are capable of withstanding critical examination in the light of the whole of the evidence presented at the trial.
[22] Therefore, there is no reasonable prospect of success in these grounds of appeal.
Ground (j)
[23] The appellant complains that the trial judge had failed to direct or misdirected himself as to the medical evidence in that he argues that medical evidence does not show vaginal penetration.
[24] The trial judge had dealt with medical evidence at paragraphs 77-84 of the summing-up and it appears that at best the medical evidence was inclusive of sexual penetration. The complainant had been examined 03 days after the incident. The trial judge had considered Dr. Vincent’s evidence at paragraphs 25 and 26 of the judgment and stated that the doctor could not rule out vaginal penetration though he could not determine if sexual penetration had occurred either.
[25] It is trite law that medical evidence is not a sine qua non for a successful prosecution for sexual offences; nor is corroboration of the victim’s evidence (see paragraph 25 of the summing-up).
[26] I do not see this ground of appeal having a reasonable prospect of success.
Grounds (k), (l), (m), (n)
[27] The appellant’s grievance here is that the prosecution had not called some witnesses and there was a failure to reconstruct the scene.
[28] These are trial issues but it appears that the trial counsel had raised them only at the closing address (see paragraph 7 and 8 of the summing-up). Calling witnesses is the prerogative of the prosecution in order to prove its case. Reconstruction of a scene is not absolutely essential to prove a case against an accused.
[29] Contrary to the appellant’s submission, the trial judge had indeed referred to the complainant’s evidence after she was recalled to clarify certain points at paragraphs 53 and 54 of the summing-up and paragraph 21 of the judgment.
[30] The allegation that the trial judge had shown bias against the appellant in the summing-up and he had shifted the burden of proof is baseless (see paragraphs 9, 10, 16, 23, 24, 26, 120 & 121). Similarly, the allegation that the trial judge had not given sufficient weight to defence witnesses has no merit (see paragraphs 86-105, 114, 115 and 119-120 of the summing-up).
[31] There is no reasonable prospect of success in these grounds of appeal.
Ground (o)
[32] I do not see any material in the summing-up to substantiate the allegation that the trial judge had asked the assessors to disregard how the complainant attempted to describe the manner in which rape took place.
Grounds (a), (b) and (c) – sentence
[33] The appellant argues that the sentence is harsh and excessive and the trial judge had taken into account irrelevant matters when sentencing the appellant. He had not elaborated these grounds of appeal.
[34] I have perused the sentencing order and cannot see any sentencing error having a real prospect of success in the sentence appeal.
Orders
Hon. Mr. Justice C. Prematilaka
ACTING RESIDENT JUSTICE OF
APPEAL
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