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Kumar v The State [2022] FJCA 3; AAU012.2016 (3 March 2022)

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

CRIMINAL APPEAL NO. AAU 012 OF 2016
(High Court No. HAC 143 of 2011)

BETWEEN:

JANEND KUMAR

Appellant

AND:

THE STATE

Respondent

Coram : Gamalath, JA
Prematilaka, JA
Bandara, JA

Counsel : Mr J. Reddy and Mr M. Young for the Appellant
Mr S. Babitu for the Respondent

Date of Hearing : 2 February, 2022
Date of Judgment : 3 March, 2022

JUDGMENT

Gamalath, JA

[1] The appellant stood trial in the High Court at Lautoka on a charge of rape, contrary to Section 207(1) and (2)(a) of the Crimes Act, allegedly committed against one X, (name suppressed) at Tuti’s Sea Breeze Hotel in Sigatoka, and following the trial the appellant was convicted as charged and the sentence of 7 years was imposed on 27 January 2016, with a five years non-parole period, which in effect means he is eligible for parole as it stands presently.

[2] Relying on a catalogue of grounds of appeal, the appellant sought to assail the conviction; however the learned Single Judge ruled that there are only two grounds of appeal that deserve the grant of leave to appeal and based on the ruling the appellant came before this Court to canvass the conviction on the following two grounds;

(1) That PW3 and PW4 the parents of the victim were in the precincts of Court whilst the victim was testifying, and despite the objection raised by the Appellant’s counsel in the trial Court, the parents were allowed to testify on behalf of the prosecution.

(2) That the learned trial Judge misdirected / wrongly directed himself on the issue of identification parade when he held that there is no evidence before him to find out who was this lady who came for the identification and what was her involvement in this matter. There was defense exhibits No 1 in particular question 113 .Such misdirection caused a substantial miscarriage of justice. (sic)

The Facts

[3] As unfolded in the trial the evidence for the prosecution is that the appellant, who is the paternal elder brother of the victim, who the victim called ‘dada’, meaning his father’s elder brother, had on 14 June 2011, having driven the victim in his car to a motel called ‘Tutis Breeze’ and led the victim into a room, where despite her protestations removed her clothes, licked her breast and had sexual intercourse with the victim.

[4] After this incident, the victim was driven back home where the victim reported the incident to her parents. Elaborating further the victim testified that whilst the ongoing sexual advances were in progress she reminded the appellant that she is his daughter. When the prosecutor questioned as to why the victim reported the incident to her parents, the victim responded that ‘My Lord, in our life the biggest thing in Hindu Ramayan, the biggest thing is to respect the daughter, the elder daughter.’ The victim had recalled the obeisance she had been paying to the appellant whilst praying and as an expression of her disgust over the crime committed against her, she described the appellant by using terms such as ‘a criminal’, ‘rubbish’ and ‘idiot’. The victim’s evidence was that the appellant’s family was making attempts to amicably settle the matter by compensating the victim by paying $28,000.00, which they refused to accept.

[5] During the course of the cross-examination of the victim, the main line of defense had been to maintain that the victim and her immediate family, as a ploy to extract money from the appellant, fabricated the allegation of rape. The victim denied the suggestion vehemently.

[6] Nothing on record shows that the identity of the appellant was in dispute at the trial. As a matter of fact in the Agreed Facts, one of the uncontested issues had been the issues of identity of the appellant, and it was the agreement between the parties that based on the kinship with each other the appellant is the elder brother of the victim’s father.

The Second Grounds of Appeal

[7] For the sake of convenience I shall first deal with the ground on the issue of identification, In the light of the material referred to above, it is crystal clear that the trial proceeded on without any contention relating to the accurate identification of the appellant by the victim and as such the appellant’s vague ground of appeal on the identification cannot be sustained. The ground of appeal has reference to a lady who was called in for an identification parade but this issue seems to be a vague matter with no significance to the case. In the circumstances the ground of appeal 2 cannot succeed.

The First Ground of Appeal

[8] The victim’s parents, the father Rajesh Kumar and the mother Rita Ram had been seen in the precincts of Court while the victim was testifying.

[9] The thrust of the argument is that as they were spectators to their daughter’s evidence, whatever they say in evidence would be tainted with the lack of spontaneity in giving answers and would be tailor-made to be compatible with the evidence of the victim. In effect by allowing the evidence of the mother and the father of the victim to come into the main stream of the evidence for the prosecution, there was prejudice caused to the appellant.

[10] I have closely examined the evidence of the parents of the victim along with the summing up and the judgement for the judge’s comment and find that they contain neither any material that goes to conclude the witnesses gave evidence to be compatible with the victim’s evidence nor is there anything objectionable in the handling of their evidence in his deliberations by the learned trial judge.

[11] In any event the objection was about the presence of the parents of the victim in court whilst she was testifying.

[12] In that regard it is pertinent to the issue raised to examine, when exactly was the discovery of the presence of the parents was made.

[13] My attention was drawn to page 270 of the court record, to the second session of the day’s proceedings. Quoting the proceedings verbatim would be necessary for this issue;

“Ms Fatiaki (the prosecutor): Please my Lord I have been told that two of our witnesses namely the mother and father of the complainant were present throughout the examination in chief and some parts of the cross. I can’t confirm the same my Lord as my back was towards the gallery but we need to bring it to your attention. My Lord my learned friend has an objection to the same.

Judge: Mr Khan, Do you have any objection?

Mr Khan: My Lord yes I have been observing my Lord. (emphasis added).

The evidence in-chief and cross partly and before the matter was adjourned Sir she was still there, both of them are still here, My Lord, the Court Assistant called the mother and explained what is happening and I am objecting to both of them giving evidence. Because they heard the whole story that cannot be cured.”

[14] Upon taking a close view of the submissions above, there is no room for doubt that the learned Counsel for the appellant in the trial had known the existence and the continuity of the very matter on which he is now taking umbrage at.

[15] I do not have to labor myself too much to drive home the fact that as far as our system of justice is concerned it is the bounded duty of a counsel involved in the conduct of a case in a court to bring to the attention of the judge any matter that he feels as should be corrected by the judicial intervention. Having perused the court record I find that the list of witnesses for the prosecution had included the parents of the victim of this case as prospective witnesses for the prosecution and it in effect means that the pre-trial disclosure of the potential witnesses for the prosecution had been duly complied with. If the learned counsel for the accused had seen the alleged irregularity persisting right in front of his eyes, the right course of action would have been to draw the judge’s attention to that matter and seek the intervention to rectify the error. Unfortunately, the reverse had happened and the very error has now been converted into a ground of appeal.

[16] I am not persuaded by the submission on behalf of the appellant that this ground has any merits. Nothing is found either in the summing up or the judgment to show that the evidence of the parents had been considered in a manner that is tantamount to miscarriage of justice.

Witness Sequestration

[17] Finally, the question of general importance that arises out of this ground of appeal is the power of court to exclude from court the parties and their witnesses during their trial. The exclusionary procedure of witnesses from a court, the Rule of Witness Sequestration, operates commonly in many jurisdictions irrespective of the existence of any specific substantive or procedural legal dictates to govern the exercise of the judicial discretion associated with it. In other word Courts have the power to order that no witness who has to give evidence should be present when depositions of other witnesses are being taken until he himself is examined as a witness in full. Witness exclusion orders are intended to prevent witnesses from tailoring their testimony based on what other witnesses have said. Generally speaking this helps any Court to ferret out the truth by noticing inconsistencies in the testimonies of different witnesses.

[18] In Halsbury’s Laws of England, Vol. 15, Simond’s Edition at page 439, the Rule of Practice is stated to be that at any time during the course of a trial, or an application of any party, the judge may order witnesses in the case to leave the Court until called for.

[19] The authority for this is stated to be Self v. Issacson (1858) 1 P and F 194; [1859] EngR 144; 175 ER 688. Again in Halsbury’s Laws of England, Vol. 10 at page 470, it is stated that unexamined witnesses may be ordered out of Court at the request of either party. It is therefore clear that the Court has the power to order unexamined witnesses out of court at any time during the trial on the application of either party. (emphasis added).

[20] The learned editors of Archbold, Criminal Pleading, Evidence and Practice, 2021, 8-34, page 1524, dealing with the subject of Presence in Courts has stated that;

In practice, witnesses remain out of Court until called to give evidence, so that each witness may be examined out of the hearing of the witnesses on the same side are to be examined after him. But there is no rule of law to this effect.Where the judge has made no ruling and a party wishes to call a witness who has remained in court, it has been held that the judge has no discretion to refuse to allow such a witness to be called; Briggs (1931)22 Cr. App.R.68; CCA and Thomson [1967]Crim.L.R.62,CA.

[21] In its totality, as it stands in law, the Rule of Witness Sequestration procedure or the Witness Exclusion operates on a rather flexible premise of law and in its procedural context, the initiation to trigger the exclusionary process would commence once a party to a suit makes the application to a court to acceed to a request for the exclusion of a witness from court. The mere presence of a witness in a court listening and observing the evidence of another witness from the same side giving evidence would not per se operate as a bar for him to testify later.

[22] Applying the rules to the instant appeal, as I have stated earlier, having regard to the procedure in the High Court, that the counsel who failed to raise the objection at the opportune time against the presence of the two witnesses has infact acquiesced in allowing their presence and therefore would not be entitled to raise the issue by way of a ground of appeal later on.

[23] As I find no merit to the grounds of appeal, the appeal should be dismissed.

Prematilaka, JA

[24] I have read in draft the judgment of Gamalath, JA and agree with reasons and orders therein.

Bandara, JA

[25] I have read the draft judgment of Gamalath, JA and agree with his reasoning and conclusions.

Orders of the Court

1. Appeal dismissed.
2. Conviction affirmed.
   

Hon. Justice S. Gamalath
JUSTICE OF APPEAL

Hon. Justice C. Prematilaka
JUSTICE OF APPEAL

Hon. Justice W. Bandara
JUSTICE OF APPEAL