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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 047 of 2016
[In the High Court at Suva Case No. HAC 170 of 2015]
BETWEEN:
KAMLESH LAL
Appellant
AND:
STATE
Respondent
Coram: Gamalath, JA
: Prematilaka, JA
: Bandara, JA
Counsel: Ms. S. Ratu for the Appellant
: Ms. J. Fatiaki for the Respondent
Date of Hearing: 04 February 2022
Date of Judgment: 03 March 2022
JUDGMENT
Gamalath, JA
[1] I agree with the conclusion arrived at by Prematilaka, JA.
Prematilaka, JA
[2] The appellant had been granted leave to appeal against the conviction imposed by the High Court on a single count of rape under section 207 (1) and 207 (2)(a) the Crimes Act, 2009 alleged to have been committed at Nausori in the Central Division for having had carnal knowledge of L.K (name withheld) without her consent. He had also been given leave to appeal against the conviction on the second count under section 209 of the Crimes Act, 2009 for assault with intent to commit rape on L.K. At the close of the prosecution case, the appellant had been acquitted of the third count of kidnapping of L.K. contrary to section 279 of the Crimes Act, 2009. The single judge had also granted leave to appeal against sentence.
[3] At the end of the summing-up, the majority of assessors had opined that the appellant was not guilty of both counts; one assessor had held otherwise. The learned trial judge had disagreed with the ‘not guilty’ opinion, convicted the appellant of both counts and sentenced him on 26 April 2016 to 14 years and 03 years of imprisonment on the charge of rape and assault with intent to commit rape respectively; both sentences to run concurrently with a non-parole period of 12 years.
[4] The grounds of appeal urged before this court are as follows:
Conviction
Ground 1
THAT the Learned Trial Judge erred in law and in fact upon convicting the appellant when the conviction cannot be supported in regards to the totality of the evidence therefore causing a miscarriage of justices.
Ground 2
THAT the Learned Trial Judge did not provide cogent reasons when overturning the majority opinions of the assessors.
Ground 3
THAT the Learned Trial Judge misdirected the assessors in paragraph 32 of the Summing Up that “The significance of this report was that it revealed the physical and mental status of the complainant after been with the accused...” when the statement was not brought out in evidence by the doctor (PW2) therefore causing prejudice to the appellant.
Ground 4
THAT the Learned Trial Judge misdirected himself and the assessors on the following evidence which was not adduced by the complainant during the trial as follows:
(a) “The accused took off her clothes...” (line 6 paragraph 28 of the Summing Up)
(b) “The three boys were slapping her face on the way...” (line 5 paragraph 27 of the Summing Up)
Therefore causing prejudice to the appellant.
Sentence
Ground 1
THAT the Learned Trial Judge erred in principle and also failed to consider:
(i) Selecting a starting point at the higher end of the tariff;
(ii) Using the aggravating factors twice, once in the starting point and separately.
A brief summary of evidence
[5] The complainant and the appellant had previously lived together as husband and wife but later they were living separately. The prosecution alleged that on 17 April 2015, while shopping in Nausori Town the appellant with the aid of two men, had forcefully grabbed the complainant and thrown her into the taxi driven by the appellant. The two men had repeatedly slapped the complainant in the taxi, blindfolded her and tied her hands and legs together. At a nearby junction, the two men had got off, and the appellant had driven the taxi with the complainant to his home. In the house, the appellant had untied the complainant and repeatedly punched her stomach, ribs and chest. Then he had repeatedly raped her. He had also continued to assault her, while raping her. She had suffered injuries as a result of the assault. Thereafter, the appellant had taken the complainant to the police station and then to a medical centre. Medical evidence had revealed some injuries on the complainant.
[6] The appellant on his part had taken up the position that the complainant had turned up at his house crying and holding her cheek with one hand. She had complained that her partner Roneel had assaulted her following an argument between the two. He had taken her to the police station and then to a medical centre. The appellant had totally denied abducting, assaulting or raping her. Roselyn O’Conner, the appellant’s then girlfriend, called by the defence had supported the appellant’s version.
01st and 02nd grounds of appeal
Verdict is unreasonable or cannot be supported having regard to the evidence
[7] At a trial by jury with a judge where the jury had returned a verdict of guilty, the High Court of Australia in Weiss v The Queen [2005] HCA 81 delving into section 568(1) of the Crimes Act 1958 (Vic) [which is verbatim of section 23(1)(a) read with the proviso of the Court of Appeal Act in Fiji] held that an appellate court must review the whole of the record of the trial, make its own independent assessment of the evidence and determine whether, making due allowance for natural limitations that exist in the case of an appellate court proceedings wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty.
[8] In Pell v The Queen [2020] HCA 12 (07 April 2020) the High Court of Australia while acknowledging the advantage in seeing and hearing the witnesses by the jury remarked in reference to section 276(1)(a) of the Criminal Procedure Act 2009(Vic) which is similar to the first limb of section 23 (1) of the Court of Appeal Act (Fiji) in the following terms:
‘38....The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury.....’
‘39. The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.’ (emphasis added)
[9] To put it another way the question for an appellate court is whether upon the whole of the evidence it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a reasonable doubt about the appellant's guilt. "Must have had a doubt" is another way of saying that it was "not reasonably open" to the jury to be satisfied beyond reasonable doubt of the commission of the offence [see Pell v The Queen (supra), Lv R> (2007) 230 CLR M v Th v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493)]
[10] Though crl trials in the High Court in Fiji were before the assessors with a trial judge being the fthe final arbiter on facts and not the assessorre or less the same test had been adopted. In Ram v Sm v State [2012] FJSC 12; CAV0001.2011 (9 May 2012) where the trial judge had agreed with the assessors’ guilty opinion, Justice Marsoof speaking on behalf of the Supreme Court of Fiji said ‘On the contrary, it is my considered opinion that upon the whole of the evidence in this case, it was not open for a judge sitting with assessors to be satisfied beyond reasonable doubt that the accused was guilty of murder.’
[11] The Court of Appeal in Sahib v State [1992] FJCA 24; AAU0018u.87s (27 November 1992) while considering section 23 (1) of the Court of Appeal, referred the considerable advantage of the trial court of having seen and heard the witnesses and stated that it was in a better position to assess credibility and weight and the appellate court should not lightly interfere but based its decision on the reading of the whole record:
‘..............Having considered the evidence against this appellant as a whole, we cannot say the verdict was unreasonable. There was clearly evidence on which the verdict could be based....... Neither can we, after reviewing the various discrepancies between the evidence of the prosecution eyewitnesses, the medical evidence, the written statements of the appellant and his and his brother's evidence, consider that there was a miscarriage of justice.... There was undoubtedly evidence before the Court that, if accepted, would support such verdicts.’
[12] The Supreme Court has reminded that in every case where a judge tries a case with assessors, the law requires the trial judge to make an independent evaluation of the evidence so that he can decide whether to agree or disagree with the opinion of the assessors. The judge is duty bound to make such an evaluation as the decision ultimately is his, and not that of the assessors, unlike in a trial by jury. Once the trial judge makes such an evaluation and decides to agree the aorsssors, he is not reot required by law to give reasons though an appellate court will be greatly assisted if a written jut setout the evidence upon which the judge relies when he agrees with the opinions of s of the athe assessors is delivered, but he must give his reasons for disagree160;with the ashe assessors [vide Chandra v State#160;]2015] FJSC 3JSC 32; CAV21.2015 (10 December 2015)].
[13] The Supreme Court has also held that in independently assessing the evidence in the cit isssary for a trial judge or appellate court to be o be satissatisfied that the ultimate verdict is supported by the evidence and that the function of the Court of Appeal or even the Supreme Court in evaluating the evidence and making an independent assessment thereof, is essentially of a supervisory nature [vide: Ram v State (supra), Chandra v Stu> (supra)/b>andnd SiSingh v State [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020)].
[14reforwouldproce consthe evidence presented at the trial and Iand I have have alre already oady outlinutlined thed the gist of the respective cases advanced by the prosecution and defense. I will now refer to salient points of contention.
[15] The complainant was on her way to do shopping at the town when she was allegedly abducted by two unidentified persons in a taxi driven by the appellant; no attempt appears to have been taken to trace those two persons by the investigators. She had gone past at least three main shopping outlets in Nausori town but not entered any one of them; no explanation had been given why she decided to walk along the road without going for shopping. There seems to have been people around the area where alleged abduction took place but none appears to have seen such an incident. She admits that if she had shouted the people working around would have heard her cries and come to her help. The complainant had seen a black car coming towards her and then parked on the side of the road but not recognized that it was her ex-husband’s (appellant’s car) which is somewhat puzzling.
[16] The two persons who carried her into the taxi had tied her legs, ankle and hands but the medical examination has not revealed any injuries on her ankles but abrasions had been seen only on the back of both knees. According to the complainant, she had been slapped inside the car hard by the two persons and the appellant having carried her inside his house had delivered 05-06 punches on her stomach, repeated punching on the bed, started to bite her neck and started slapping and hitting her while she was struggling to free herself. He had even hit her back with the flat side of a cane knife. While on the bed the appellant was having sexual intercourse with her until she scratched his chest and squeezed his tastes hard at which point he stopped and starting crying. According to the complainant, she had been in so much pain and so badly hurt that she could not even walk.
[17] However, the medical evidence only shows that the complainant had swelling on the left jaw, two bruises on the upper back and lower back, old bleed on the right ear indicating an internal head injury and some abrasions on the back cuff and knee. At first blush, these injuries as a whole do not seem to correspond to the kind of fierce attack allegedly inflicted on several parts of the complainant’s body as described by her. However, some injuries do tally with some of the blows spoken to by the complainant. The examining doctor had said that injuries could be expected on the complainant’s hands and ankle, if tied up for quite some time and on the chest and the ribs, if repeatedly punched on those areas but no such injuries were seen.
[18] Nevertheless, the doctor who had examined the complainant on the same day had found her to be restless or in a state of shock; the signs of a person who had suffered a major physical or psychological trauma. The doctor had observed the injuries to be fresh i.e. within 24 hours and particularly a fresh cut injury on the vaginal wall/vulva.
[19] Unfortunately, the appellant had not been examined for any scratch marks on his back or for any signs of hard squeeze of his testes. Though, both the complainant and the appellant had spoken to possible bite marks on the neck the doctor had seen none.
[20] According to the complainant, after the act of forcible sexual intercourse was over she agreed to get back with him as she wanted to get out of the house. The appellant had taken nude pictures of her, gave her his t-shirt and underwear and lifted her to the settee where she waited until he got dressed. Thereafter, he had taken her to Nausori police station and went inside the police station while she remained in the car where she found his phone on the driver’s seat and deleted some of those pictures. From there, they had gone to Nausori Health Centre where he carried her from the car to the doctor. He had volunteered to answer the doctor’s questions and said that someone had assaulted her. However, the complainant had managed to slip a piece of paper to the doctor identifying the appellant as the one who assaulted her. The doctor had asked him to leave the examination room repeatedly despite his reluctance and she had told the doctor what had happened. The doctor had reported the matter to the police and kept her for observations.
[21] However, under cross-examination the complainant had admitted that she was alone in the car for about 10 minutes and could have alerted the police officers in the vicinity and even left the taxi. Her explanation was that she was so badly hurt that she could not walk and even move inside the car to toot the horn. However, the doctor had not stated that the complainant’s condition was such that she could not even walk as claimed by her. The doctor had not spoken to the complainant passing a note to her or that the appellant had to be asked several times to leave the examination room. The doctor had also not given evidence on anything that the complainant had told her or reporting the matter to the police.
[22] The defense had suggested inter alia to the complainant that she turned up at the appellant’s house on her own complaining that she had been beaten-up by her boyfriend and asked for his help which prompted him to take her to the police station. It had also been suggested that when she arrived, the appellant’s partner Roselyn was also there with him. As admitted by the complainant, Roselyn had visited the complainant at the hospital in the same afternoon.
[23] As could be seen, among these matters there are several aspects which have a bearing on the credibility of the complainant. However, the appellant’s acquittal of the count on abduction was due to there being no evidence on one of the elements of the offence and not based on the credibility of the complainant. This is not to say that the complainant was plainly incredible but the learned High Court judge should have given his mind to them in the judgment when he overturned the assessors’ ‘not guilty’ opinion and convicting the appellant. However, he had not left these matters with the assessors and more crucially he had not considered them by himself in the judgment.
[24] The appellant’s position under oath was that the complainant turned up at his house shaken wearing a torn cloth and holding her cheek with one hand. When questioned, she had told that her boyfriend had assaulted her but she had not spoken to a sexual assault such as rape. He advised her to report the matter to the police. At that time Roselyn too was in the sitting room with him and the complainant. At her request, he had given her a white t-shirt and one of his underwear for her to wear. The complainant was seen on the phone crying and at the other end Roneel, her boyfriend was heard on the phone speaker swearing at her. Thereafter, he had taken her to Nausori police station where he had reported the matter and the police had given him a medical form. When asked, he had told the police officer that she was in the car. Before he went inside the police station the complainant had asked his phone to call kids. This position had not been put to the complainant when she gave evidence. He had then taken her to Nausori Health Centre. The doctor had asked him to leave the room and he had obliged. He had not met the police on that day at the hospital but walked in to the police station on the Sunday having learnt from fellow taxi drivers that the police was looking for him. He had denied all allegations.
Trial judge’s interference during cross-examination of the appellant
[25] I shall now turn my attention to another aspect of the appeal urged by the appellant. It appears from cross-examination of the appellant that from page 306-309 the trial judge had literally taken over the cross-examination. What is more disturbing is that the trial judge had on several occasions not allowed the appellant to come out with his answer and on several other occasions his answers had been half-recorded or recorded as ‘inaudible’. He had been persistently questioned by the trial judge as to why he did not take the complainant to the police station despite his answer that she stayed back to make a call and said that she will follow him. The trial judge’s further questioning can also be found at pages 311-313.
[26] The relevant questions by the trial judge and appellant’s answers are as follows:
Judge: You took her to the Police Station but you did not allow her to go into the police station?
Ms. Serukai: My Lord....
Judge: Just answer the question?
Mr. Lal: I allow her, Sir.
Judge: Actually physically take her into the police station, that’s what I’m trying to say.
Mr. Lal: What happen exactly...
Judge: What is your answer, because if you in fake my question the time...[Inaudible]...will be pin on your four head, right. So, when I ask you a question, answer it [Inaudible]
Mr. Lal: Okay, Sir.
Judge: Don’t go like this, don’t go like that, don’t go like that, don’t go underneath because that will classify you as a ...[Inaudible]...witness.
Mr. Lal: Yes, Sir.
Judge: In your credibility is serious in effect because you trying to hide something from us.
Mr. Lal: Okay, Sir.
Judge: So, if you take her to the Police Station why didn’t you take her into the Police Station? So that the police officers see her and talk, that’s the question:
Mr. Lal: ...[Inaudible]....
Judge: We are not interest in number.
Mr. Lal: ...[Inaudible]...
Judge: See, the purpose of taken a person to the Police Station is for the police to see them physically internal eyes.
Mr. Lal: Yes, Sir.
Judge: If you are genuine about your intentions, you’ll take a person to see a police officer, full stop.
Mr. Lal: Yes, My Lord.
Judge: Why did you do that?
Mr. Lal: I didn’t do that, My Lord. Before that she asked the phone.
Judge: No, I’m not interested in the phone. I’m trying to find your general intention. If a person is really consent about someone, and wants to take that someone to the Police Station, that person would make sure that the person and the police officer sees them ...[Inaudible]...that sour the normal...[Inaudible]....
Mr. Lal: Yes, My Lord I agree to that.
Judge: You take the person, you walk into the Police Station while that person is the subject been taken to the Police Station was not actually taken to be seen by the police officers. Why did you take her to see the police officers?
Mr. Lal: When I get off, I was waiting for her. She told me to go ahead and I went while she was making the call.
Judge: So you did not take her to actually see the police officers?
Mr. Lal: No, My Lord. She was going to come. [Inaudible]....
Judge: So, you did not take Lenora into Nausori Police Station for the police officers to see her directly.
Mr. Lal: That’s right My Lord.
Judge: Why?
Mr. Lal: I was waiting for her in the police station; because she said after she had made the call she will come.
Judge: You said you carried her to the Doctor, why didn’t you carry her from the taxi to the police station?
Mr. Lal: I did not carry her to the Doctor. I help her...[Inaudible].....
Judge: Alright, we haven’t come to the Doctor yet. We examining your intention, because we were trying to portrait the picture as you are, a Good Samaritan, right?
Mr. Lal: Yes.
Judge: Samaritan to the sense that you have taken the complainant Police Station. Now we will examine whether or what you really a Good Samaritan or you pretended to be one. That’s why I’m asking you this question, because the Good Samaritan will actually take the out patients to the police officer and let the police officers do their work. The person has the question, not through you but police officers direct to the complainant to ask [Inaudible]....nobody to interview. So why didn’t you take her to the Police Station....[Inaudible].
Mr. Lal: I just got off and ....[Inaudible]...take the phone and I just went to the Police Station she said she will.....[Inaudible].
Judge: So no reason for her to see the police officer, you show no reason to take her to see the police officer?
Mr. Lal: ....[Inaudible]....police officer to report the matter.
Judge: Yeah, why didn’t you see all your story appears to be question marks? Why don’t you take this person to the police station you didn’t actually take her inside?
Mr. Lal: Because she was using the phone and she tell me you go ahead first and report the matter and I did that what she ask me to do.
[27] A judge has not only the right but also the duty to put questions to a witness in order to clarify an answer or to resolve possible
misunderstanding of any question by a witness put to him by counsel and even to remedy an omission of counsel by putting questions
which the judge thinks ought to have been asked in order to bring out or explain relevant matters. If there are matters which the
judge considers have not been sufficiently cleared up or questions which he himself thinks ought to have been put he can intervene
to see that deficiency is made good. It is generally more convenient to do this when counsel has finished his questions or is passing
to a new subject. The nature and extent of a judge’s participation in the examination of a witness is a matter within his discretion
which must be exercised judicially. The judge should keep the scales of justice in even balance between the State and the accused.
See R.v. Darlyn
[28] However, though the trial judge has a right and often a duty, if justice is in fact to be done, to question witnesses, interrupt them annecessary to call them in order he must do so within certaiertain limits and in such a way that justice is seen to be done. When the trial judge goes beyond the limits and by his conduct gives the impression of assisting counsel for the prosecution and raised some doubt as to his impartiality only a new trial can erase such doubts (vide Browilland v The Queen [ I R.C.S. 39).
[29] In my view, the trial judge has gone beyond the limits permitted in taking over the cross-nation of the appellant. The High Court of Australia on the application of section 6(1) of ) of the Criminal Appeal Act 1912 (NSW) which is similar to the proviso to section 23(1) of the Court of Appeal Act in Fiji held in Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 that the proviso has no application where an irregularity has occurred which is such a departure from essential requirements of the law that it goes to the root of the proceedings where it can be said that without considering the effect of it on the verdict that the accused has not had a proper trial and there has been a substantial miscarriage of justice. Nevertheless, there is no rigid formula to determine what constitutes such a radical or fundamental error and in the end no mechanical approach can be adopted and each case must be determined its own circumstances.
[30] The Fiji Court of Appeal in Hussein v State [2019] FJCA 108; AAU034.2015 (6 June 2019) where it examined similar complaints of the trial judge having continuously intervened and interfered with the trial process depriving the appellant from having a fair trial, set aside the conviction and ordered a new trial.
[31] I am convinced that given the extent of the trial judge’s intervention during cross-examination of the appellant, he had raised sufficient doubts that he had already made up his mind that the appellant was an incredible witness and as a result the appellant had been deprived of a fair opportunity to put forward his defense and repeatedly pressed by the trial judge to explain why he did not accompany the complainant to the police station as if his answer had not been simply acceptable and not the one the trial judge wanted.
[32] The trial judge’s lack of open-mindedness and adverse predisposition towards the defense had come to the fore when the defense counsel sought re-directions on two factual matters at the end of the summing-up where the judge had literally had a long argumentative discourse with counsel in the presence of the assessors. This can also be seen in the fact that only four typed lines were devoted to the appellant’s evidence in the summing-up by the trail judge.
[33] Roselyn Mari O’Conner called on behalf of the appellant had testified that on the day in question she was picked up by the appellant, who was her boyfriend at the time, from her work place and both had gone to his house to have lunch. Hearing a knock at the door she followed the appellant to the door. She had seen the complainant at the door wearing torn top and crying and holding her left cheek with her hand. The complainant had complained that her boyfriend had done that to her but not yet reported the matter to police. The appellant had given her a white t-shirt, undergarment and a pad. She had asked the appellant as to what she was doing there and gone back to her job. In the afternoon she had visited the complainant at Nausori Health Centre. Under cross-examination by the prosecuting counsel and the trial judge she admitted that she did not know what transpired after she left for work.
[34] Before I get to discuss the second ground of appeal, it is necessary to arrive at a decision on the first ground of appeal. Despite the trial judge not having directed the assessors on matters highlighted above affecting both the prosecution and defense, the majority of assessors had opinioned the appellant to be not guilty. The trial judge in his judgment differed with the assessors and convicted the appellant. He had not directed himself on those aspects of the evidence. The question is whether it was open for the trial judge to have arrived at his decision upon the whole of the evidence.
[35] This is a case where on the one hand one cannot say that there was no evidence upon which a verdict of guilty could be entered against the appellant and on the other hand it is not possible to rule out the possibility of the appellant getting acquitted if a proper evaluation and assessment of evidence had been undertaken by the trial judge. The trial judge’s excessive involvement in the cross-examination of the appellant had added another negative dimension to the case.
[36] If the verdict of the jury is unreasonable or cannot be supported having regard to the evidence there is substantial miscarriage of justice (vide Baini v R [2012] HCA 59; (2012) 246 CLR 469; [201A 5HCA 59), Pell v The Queen [2020] HCA 12, [45] a>DeDegei v State [2021] FJCA 113; AAU157.2015 (3 June 2021). However, it is not possible for this court to answer that question firmly in tfirmative or negative at this stage on the totality of evid evidence and particularly because the appellant had not got a proper trial as already held. This court can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a ‘substantial miscarriage of justice’ if the court concludes from its review of the record that conviction was inevitable [vide Baini v R (supra)]. It is difficult to conclude what effect the irregularity of the trial judge’s excessive interference and his seemingly antagonistic premonition against the appellant had on ltimate verdict even given allowance for the advantage he e he enjoyed in seeing the witnesses. It is also simply not possible to conclude that despite the issues discussed in the evidence of both parties the conviction was inevitable.
[37] Where an error or irregularity has occurred and the court cannot be satisfied that the matter did not affect the outcome is one of the instances where there is a substantial miscarriage of justice (Baini v R (2046 CLR 469; [2012] HCA 5HCA 59). In some cases it will be impossible for an appellate court to assess the effect of an irregularity on the outcome of the trial #160;Baini v R (2046 CLR 469; [201 [2012[2012] HCA 59 and Libke v R&(200; (2007) 230 CLR 559; [2007] HCA 30 per Kirby and Callinan JJ). I think the appellant’s appeal falls into this category.
[38] In the light finding that the conviction cannot be held to be inevitablitable, and a substantial miscarriage of justice had occurred the appeal against conviction of the appellant should be allowed and the verdict of guilty should be set aside.
[39] The only remaining issue is whether to order a new trial or enter a verdict of acquittal. In Laojindamanee v State [2016] FJCA 137; AAU0044.2013 (30 September 2016), the Court of Appeal laid down some guidance for a retrial to be ordered. The court held that the interests of justice are not confined to the interests of either the prosecution or the accused in any particular case but include the interests of the public that people who are guilty of serious crimes should be brought to justice. Other relevant considerations are the strength of evidence against an accused, the likelihood of a conviction being obtained on a new trial and any identifiable prejudice to an accused whilst awaiting a retrial. However, a retrial should not be ordered to enable the prosecution to make a new case or to fill in any gaps in evidence.
[40] In Togava v State (Majority Judgment) [1990] FJCA 6; AAU0006u.90s (10 October 1990) the Court of Appeal held that:
‘We are of the opinion that instead of directing a verdict of acquittal to be entered in favour of the Appellants the interests of justice require that a retrial be ordered in this case. We say so having regard to the totality of the evidence presented before the High Court. We are unable to say what view the assessors might have taken in respect of each Appellant had they (the assessors) been properly directed on all relevant matters. ........’
As we propose to order a retrial we have, in fairness to the Appellants, deliberately refrained from referring to pieces of evidence which could be regarded as strongly supportive of the prosecution case. We have however in exercising our discretion to order a new trial considered and balanced a number of factors some of which were for and some against the Appellants.’
[41] As in Togava v State (supra) this court is unable to say what verdict a trial judge without any adverse pre-disposition and with the appellant getting
a proper trial without undue interference in presenting his case and then objectively assessing and evaluating the whole of evidence
would have arrived at. Therefore, acting under section 23(2)(a) of the Court of Appeal Act and guided by the above decisions, I think the interests of justice requires that a new trial be ordered against the appellants in
this case. This is reinforced by the finding that though it was still open to the trial judge to convict thellant on the evie evidence
available, it cannot be said that it was not open to the triage to acacquit him eit
p>The trial judge did not provide cogent reasons when overturning the majority opinion of the assessors/b>
[42] The sThe second ground of appeal challenges the cogency of the reasons given by the trial judge in the judgment. Since the majority of assessors expressed an opinion that he was not guilty, his complaint of the verdict being unreasonable and cannot be supported by evidence is necessarily directed at the judgment where the trial judge found him guilty. The argument of the judgment lacking cogent reasons could therefore be considered as another plank of challenging the ultimate guilty verdict.
[43] Following a long line of cases the Supreme Court in Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020) reiterated the that the judge must pronounce ‘cogent reasons’ for differing from the assessors and stated that the objective of such a requirement is to explain to the assessors, the prosecution and the accused as well as to the society at large, the reasons for the decision, so that the social conscience can rest in the knowledge that justice was done adding that candid reasons set out in the judgment of the trial judge, can be of great assistance when an appellate court is called upon to review the decision on appeal.
[44] The ‘cogent reasons’ should be 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 State [2009] FJSC 7; CAV0024.2008 (6 February 2009), Ram v State [2012] FJSC 12; CAV0001.2011 (9 May 2012), Chandra&##160;v Statee&<;[260; [2015] FJSC 32; CAV21.2015 (10 December 2015) and Baleilevuka v State [2019] FJCA 209; AAU58.2015 (3 October 2019)]
[45] In order to give a judgment containing cogent reasons for disagreeing with the assessors, the judge must therefore do more than state his or her conclusions. At the least, in a case where the accused have given evidence, the reasons must explain why the judge has rejected their evidence on the critical factual issues. The explanation must record findings on the critical factual issues and analyse the evidence supporting those findings and justifying rejection of the accused’s account of the relevant events [Lautabui v State ()]
[46] In F In Fiji with effect from 12 February 2021 assessors do not participate in criminal proceedings after the promulgation of Criminal Proe (Amendment) Act 2021. At a trial before a judge alone, the, the High Court of Australia in AK v Western Australia [2008] HCA 8 held in relation to section 120 (2) of the Criminal Procedure Act 2004 (WA) (requiring the trial judge siting alone to include the principles of law that the judge had applied and the findings of fact on which the judge had relied) that when the failure to provide a reasoned decision that met the criteria of section 120(2) in respect of a central issue resulted in a substantial miscarriage of justice, the proviso could not be applied and a retrial was ordered. The Court held that the requirement under section 120(2) permits close appellate supervision of the trial judge’s factual reasoning and it creates the need for the trial judge to submit to a demanding discipline. In Fleming v The Queen (1998) 197 CLR 250 where there was a failure of the judge sitting alone to refer to the statutory warning about the reliability of the complainant’s evidence, a retrial was ordered as the error of law amounted to a substantial miscarriage of justice.
[47] However, it is not a useful task to attempt to make absolute rules as to the requirement to give reasons because the issues are so infinitely various and the extent of the duty depends on the subject matter; but giving reasons is a function of due process and justice; transparency is the watchword (vide Flannery and another v Halifax Estate Agencies Ltd [1999] EWCA Civ 811; (2000) ALL ER 373). Three circumstances in which an appellate court may be justified in taking a different view on facts from that of a judge without a jury or assessors are succinctly given by Lord Thankerton in the House of Lords in Watt v Thomas [1947] AC 484.
[48] Having the above discussion of the law in the background, I shall proceed to consider the trial judge’s judgment and his reasons for overturning the assessors’ majority opinion. The trial judge had set down reasons in three short paragraphs of the judgment. Other than reiteration of the bare gist of evidence, the reasons for his decision appear to be that the complainant and the doctor were credible witnesses and the injuries disclosed by the medical report confirmed the complainant’s version of events.
[49] The trial judge had devoted just 05 lines to deal with the defense case in which he had said that the appellant and his witness were not credible. According to the trial judge Roselyn was there simply to prop up the appellant’s evidence.
[50] Given the two diametrically varied versions presented by the prosecution and defense, even making due allowance for the fact that the trial judge had seen and heard the witnesses, I do not think that the assessment and analysis of the totality of evidence measure up to the required legal standard judicially laid down by the Supreme Court in Fiji in a number of decisions cited above. None of the factual issues that could have impacted upon his decision as highlighted above had received any consideration in the judgment. There has been no evaluation of evidence and making an independent assessment thereof by the trial judge in the judgment. In my view, the evidence led by both sides called for a more in depth assessment and analysis on the part of the trial judge particularly in the face of ‘not guilty’ opinion by the majority of assessors. I cannot say that test of ‘cogent reasons’ have been met.
[51] Though, lack of ‘cogent reasons’ by itself may not succeed as a ground of appeal, for the appellate court can adequately engage in an independent assessment and evaluation of evidence on record, in this instance lack of ‘cogent reasons’ coupled with the failure on the part of the trial judge in evaluating the evidence and making an independent assessment exacerbated by the irregularity of excessive judicial interference in the defense case has led to a substantial miscarriage of justice.
[52] In the light of my findings on the first and second grounds of appeal there is no useful purpose in going into the third and fourth grounds of appeal against conviction. They deal with some peripheral issues. Similarly, it would be superfluous to deal with the sentence appeal as the conviction appeal succeeds.
Bandara, JA
[53] I have read the draft judgment of Prematilaka, JA and agree with his reasoning and conclusions.
Orders
(1) Appellants’ appeal against conviction is allowed.
(2) Appellants’ conviction is quashed.
(3) A new trial is ordered against the appellant.
(4) Appellant is to revert to remand custody subject to further orders of the High Court.
(5) Appellant is to be produced before the High Court within 14 days of the date of this judgment.
Hon. Mr. Justice S. Gamalath
JUSTICE OF APPEAL
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
Hon. Mr. Justice W. Bandara
JUSTICE OF APPEAL
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