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Swamy v The State [2024] FJCA 154; AAU091.2023 (1 August 2024)

IN THE COURT OF APPEAL, FIJI
Appellate Jurisdiction

CRIMINAL APPEAL NO. AAU 091 OF 2023

BETWEEN:
JAMES GOVIND SWAMY
Appellant

AND:
THE STATE
Respondent

Coram: Mataitoga, RJA

Counsel: Mr.Yunus M for Appellant
Mr. Seruvatu for Respondent

Date of Hearing: 16 July 2024
Date of Ruling: 1 August 2024

RULING

1. The appellant [James Swamy] was 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.
   
2. The information filed by the Director of Public Prosecution read as follows:
   

Statement of Offence

RAPE: Contrary to section 207(1) and (2) (a) of the Crimes Act 2009

Particulars of Offence

JAMES GOVIND SWAMY on the 30^th day of May 2019 at Lautoka in the Western Division, penetrated the vagina of AR with his penis, without her consent.

3. The trial was held on 5, 6, and 20 September 2023, after the appellant pleaded not guilty to the charge. The respondent called the complainant [AR] and 4 other witnesses. After the respondent presented its case, court found that there was a case to answer. The appellant and 2 other witnesses gave evidence for the appellant. The court also received written submission from both sides.
   
4. In the judgement^[1] of the court, delivered on 27 September 2027, the appellant was found guilty as charged and convicted. In the Sentence Ruling^[2] dated 20 October 2019, the appellant was sentenced to 11 Years imprisonment with a non-parole period of 9 years.

Leave To Appeal

5. The appellant filed a Notice to seek Leave to Appeal against conviction and sentence on 16 November 2023. The appeal period against conviction was 3 weeks out of time; but the appeal against conviction was timely. In light of the grounds of appeal submitted, the court will treat this application for leave to appeal against conviction and sentence, as timely.
   
6. Section 21 (1) (b) of the Court of Appeal Act 2009 empowers the Justice of Appeal to determine leave application involving questions pertaining to claim of an error of law and fact.
   
7. In Pravin Anil Singh v State^[3] the applicable principles of law was outlined thus:

[11] The appeal alleges errors of law and fact by the trial judge and is filed his application for leave pursuant to section 21(1)(b) of the Court of Appeal Act. This provision requires leave of the court, hence this application for Leave to Appeal by the appellant. The appellant submits five (5) grounds of appeal against conviction and three (3) against sentence.

[12] For leave to be granted, the appellant must convince the court that all or any of the grounds submitted in support of the leave application have a reasonable prospect of success: Caucau v The State [2018] FJCA 171. The Court in Sadrugu v State [2019] FJCA 87, adopted the approach enunciated in S v Smith [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) (para 7) wherein Supreme Court of Appeal of South Africa, addressing whether leave to appeal by the high court should have been granted or not, stated the following:

‘What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal. (emphasis added)

[13] Therefore, I use the test of reasonable prospect of success as described in Smith, (supra) to evaluate the grounds submitted by the appellant in support of his Leave Application.

Grounds of Appeal

8. The following grounds of appeal, were submitted by the appellant to support his application for leave to appeal.
   

Ground 1: The learned trial Judge erred in law, and in fact when he failed to reserve his sentencing decision for further consideration, pursuant to section 242 the Criminal Procedure Act 2009 despite that before the sentence was pronounced, the complainant told the court that the Appellant was innocent and that she was forced by police to frame the Appellant for the offence and to give evidence against the appellant or face imprisonment term or hefty fine causing substantial miscarriage of justice to occur to the appellant.

Ground 2: The learned trial Judge erred in law and in fact when he failed to recall and re-examine the complainant, pursuant section 116 of the Criminal Procedure Act 2009, despite before the sentencing, the complainant voluntarily telling the court that the Appellant was innocent, but she was forced by the police to frame the accused and to give evidence against the repellent, causing substantial miscarriage of justice to the Appellant.

Ground 3: The learned trial Judge erred in law and in fact, when dealing with consistencies in the evidence of the complainant and the Appellant, he failed to give same weight to the Complainant and the Appellant.

Ground 4: The learned trial Judge erred in law and in fact when he failed to comprehend that the complainant was unreliable witness since she had lied in court about receiving a call from the Appellant after 2 days of the alleged incident because

1. PW2 (mother of the complainant) telling the court the complainant did not have a phone for herself and used to steal her phone to make calls’;
2. On 30^th May 2019, complainant asking PW2 to give her phone for her to call her friend;

100. PW2 receiving the call from unknown caller and speaking pretending to be the complainant; and

4. Not the brother receiving the call since according to the complainant she gave her SIM on which the Appellant was calling 2 days after the alleged incident to her brother and not her mother.

Ground 5: The learned trial Judge erred in law and in fact when he failed to comprehend that PW2 evidence supports the alibi raised by the Appellant’

1. Complainant telling her ‘Mum you had hit the wrong person’
2. The Appellant respond to her question ‘Are you the one that has been calling my daughter? No’’; and

100. PW2 agreeing telling the police that the person in contact with her daughter was a bus driver and not one who worked at Lautoka City Council: and

4. She sought forgiveness because she was wrongly identified the accused that night
5. The complainant never complaining to her about the alleged rape prior to the assault incident.
   

Ground 6: The learned trial Judge erred in law and in fact when he failed to comprehend that the complainant alleged that the rape took place inside the car but her mother suspected her of lying on grass, therefore taking into consideration the totality of the evidence, there is still reasonable doubt whether the complainant was reliable and trustworthy witness.

Ground 7: The learned trial Judge erred in law and in fact, when he expected the Defence Counsel to put the complainant to clarify about the Appellants believe that ‘FJ Nollen Christopher was a boy’ when the complainant would not be in any position to clarify what the Appellant thought about the name, causing substantial miscarriage of justice to occur to the Appellant.

Ground 8: The learned trial Judge erred in law and in fact when he failed to accept the alibi evidence of the Defence witnesses reliable and credible despite prosecution failing to disprove them beyond reasonable doubt.

Ground 9: The learned trail Judge erred in law and in fact to hold the alibi evidence of Ms. Devi and Ms. Faga’s unreliable since he opined that their police statements were belated to support the Appellant, however had the learned trial Judge judiciously investigated whether such alibi notice was given by the Appellant during record of interview, it would have been revealed that it was made but police failed to check the alibi and record statements of these witnesses contemporaneously, thereby causing substantial miscarriage of justice to occur to the Appellant.

Ground 10: The learned trial Judge erred in law and in fact, when he reversed the onus of proof to the Appellant to prove specific reasons for him to remember 30^th May 2019 and held that ‘it is reasonable to assume that the accused cooked up his alibi to save his skin’ causing substantial miscarriage of justice to the Appellant.

Assessment of the Grounds of Appeal

9. Appeal Ground 1 above is misconceived. The trial judge was correct in deciding that once he had issued the judgement of the Court, he is functus in that case. He has no power to reopen a case.
10. The various references from the Criminal Procedure Act 2009 [CPA] cited, namely section 116 which deals with power to recall and re-examine witnesses at any stage of the trial. This is not case here. In this instance the trial has concluded, so the trial judge was correct in refusing to accept the appellant’s attempt to introduce evidence which are not new. The evidence now sought to be introduced, if true, was available at the trial, but it was no availed.
    
11. Sections 242 and 243 of the CPA is not applicable to the factual situation here. This ground has no merit and has no reasonable prospect of success on appeal.
    
12. Appeal Grounds 2 is misconceived. Section 116 of the CPA does not give power to the trial court judge, to recall witnesses after a case is tried and judgement delivered. This section is concerned with the trial process prior to the tribunal in question reaching a decision. Once a decision is reached as in this case, the trial judge cannot reopen it. I reserve comment on the nature and circumstances of the evidence leading to request submitted to the trial judge to re-open the case.
    
13. The Court of Appeal is addressing previous section 135, now section116 of the CPA in Raikoso v State^[4] stated the following:

“135. Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.”

[6]. It is clear that the section is concerned with the trial process prior to the tribunal in question reaching a decision. The provision gives statutory effect to what has long been recognized as a discretionary power vested in a Judge conducting a criminal trial. See R.v. Sullivan [1923] 1 KB 47, R. v. Nash [1958] NZLR 314, and the discussion in Archbold Criminal Pleading, Evidence and Practice 2005, at 8-251. But it is beyond question that the power cannot be utilised when the trial has been concluded, and a verdict or decision announced. Once that stage has been reached the tribunal has no jurisdiction to set aside its own decision or otherwise re-open matters already decided.”

14. This ground has no merit and no prospect of success.
15. Appeal Grounds 3 and 4 alleges that the trial judge erred in law in dealing with inconsistencies of the complainant’s evidence. By this the appellant refers to: four instances of what they claim is inconsistent evidence. There is no submission provided to explain how the evidence is inconsistent and to what, which issue in the trial that is essential to proof beyond reasonable doubt to some critical aspect of the charges brought against appellant.
    
16. The submissions made by the appellant in support for this ground of appeal at best is that of PW2 making all the relevant statements he relies on but not that of the complainant. The trial judge adequately dealt with this at paragraphs 86 to 92 of the judgement.
    
17. In Hind Munishwar Lal v State ^[5] the Supreme Court stated, in relations to claim made appellants of inconsistent statements during the trial:

“[29] Ground 12 raises the issue of the trial Judge’s failure to direct the assessors on inconsistencies arising from the evidence of prosecution witnesses. To some extent this ground ignores the reality of trial evidence. There will always be inconsistencies in evidence given by witnesses appearing for both the prosecution and the defence. It would raise serious doubts if the evidence was identical. Minor inconsistencies are inevitable. Memories fade. If the inconsistencies are of a nature that may affect credibility and or reliability then they would need to be addressed. On the other hand if the trial judge forms the view that they are relatively insignificant and due to the passage of time then the inconsistencies need to be taken no further. The fact that the Prosecution evidence may have been inconsistent on minor detail was a matter for the assessors in determining whether the Prosecution had established the case beyond reasonable doubt. The learned Judge had adequately explained this to the assessors.”

18. In this case the inconsistent evidence does not affect the overall veracity of the evidence of the complainant on the core complaint of rape. These grounds have no prospect of success.
    
19. Appeal Grounds 5, 8, 9 and 10 allege that the trial judge failed to comprehend that PW2’s evidence support the alibi evidence raised by the appellant. Trial Judge at paragraphs 92 to 100 of the judgement covered in detail the alibi defence raised by the appellant. All the issues raised in the grounds of appeal on alibi are covered in the analysis provide by the trial Judge in the parts of the judgements already referenced above.
    
20. In the end, the court was not convinced with the truthfulness of the witnesses called by the appellant, all of whom are closely related to him as wife or concubines or girl friend.
    
21. These grounds of appeal have no prospect of success.
    
22. Appeal Grounds 6 relates to where the rape took place. On the evidence of the complainant, it took place at the back of the appellant’s car while it was parked in a secluded place in Lovu, Lautoka. The appellant now claim, that because when AR retuned home late at night, she had grass particles stuck in her dress at the back, that she was not telling the truth about the exact place of the rape.
    
23. On its own, this evidence is not conclusive of anything. It also does not mean that the rape did not take place in the car as testified by AR, which the trial judge accepted. There may be innocent circumstances that may have caused the grass particles to be attached to the dress of AR. This matter was not pursued by the appellant’s counsel at the trial. The prosecution had produced evidence which satisfied their case beyond reasonable doubt, that AR was raped in a car.
    
24. This ground of appeal has no reasonable prospect of success.
    
25. Appeal Ground 7 claims that trial judges erred in law and fact in expecting defence counsel to establish from the complainant during the cross examination about the name etc. of the so called “FJ Nollen Christopher was a boy”. From this the appellant is claiming the trial judge has shifted the burden of proof from the state to himself. This is not so.
    
26. The appellant is relying on paragraph 95 of the judgement in the case, to make this claim. This part of the evidence is where the trial charge is dealing with alibi evidence. This is ground is confused about what it alleges.
    
27. This ground is meritless and has no reasonable prospect of success.
    
28. After reviewing the grounds of appeal and the submissions in support, the grounds submitted have no reasonable prospect of success on appeal.
    

ORDERS:

1. Leave to appeal on all grounds submitted is refused.
   

Isikeli U Mataitoga
RESIDENT JUSTICE OF APPEAL

^[1] State v James Govind Swamy, FJHC ; (Crim Case No: HAC 126 of 2019)
^[2]
[3] [2024] FJCA 16 (AAU 051 of 2022)
^[4] [2005] FJCA 19 (AAU 050 of 2004S)
^[5] [2023] FJSC 33 ( CAV 08 of 2021)