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Khan v State [2008] FJHC 79; HAA004.2008 (5 May 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal Case No.: HAA 004 of 2008

BETWEEN:

MOHAMMED SALIM NUR KHAN
f/n MOHAMMED SAFIQ
Appellant

AND:

THE STATE
Respondent

Counsel: Dr. S. Khan for the Appellant
Ms. J. Cokanasiga for the Respondent

Date of Hearing: Tuesday 15th April, 2008
Date of Judgment: Monday 5th May, 2008

JUDGMENT

Background

[1] The appellant was charged with the following offence:

Statement of Offence

INDECENT ASSAULT: Contrary to section 154 (1) of the Penal Code, Cap 17.

Particulars of Offence

Mohammed Salim Nur Khan s/o Mohammed Safiq on the 5th day of May, 2007, at Kulukulu Sigatoka in the Western Division had unlawfully and indecently assaulted Sainimere Kilitale.

[2] Following a trial in the Sigatoka Magistrates’ Court, the appellant was convicted of the charge and sentenced to 3 years imprisonment.

Facts

[3] The complainant was an 8 year old girl who gave unsworn evidence at the trial. She said on 5 May 2007 at around 5 pm, she went to the appellant’s house to sell beans. The appellant invited her inside his house. At first she refused to enter the house but later went inside when the appellant offered her some candies. Inside the house, the appellant touched and kissed the complainant’s private parts. The complainant said she was not wearing any under garment. The appellant let the complainant go when the appellant’s father came inside the house. The complainant ran to her home and complained to her mother about the incident.

[4] The complainant’s mother gave evidence. She said that when the complainant returned home on the day in question, she found her in a state of distress. She said the complainant was rubbing her face by her hands and was about to burst into tears. The complainant relayed the incident that occurred at the appellant’s home. In cross examination, she accepted that she owed $8.00 to the appellant.

[5] In his caution interview, the appellant said the complainant came to his house to sell beans. He bought some beans and she left. He did not invite her inside the house nor did he indecently assault her as alleged. He said the complainant’s mother owed him $8.00 and that is why they fabricated the allegation against him.

[6] The appellant gave evidence. His evidence was consistent with the statements he made in his caution interview. A woman by the name of Reena Devi who stays with the appellant also gave evidence. She said on the day in question she was standing about 10 meters away under a tree when she saw the complainant outside the appellant’s house. She said she did not see the complainant go inside the house.

Grounds of Appeal & Submissions

[7] The appellant appeals against the conviction and sentence on the following grounds:

(i) That the Learned Trial Magistrate erred in law and in fact in not upholding that the charge as laid was defective when the charge did not disclose any offence known in law particularly:-

(a) When the charge omitted to state that the charge related to a female or woman or girl.

(b) When relevant Judgments and substantive Submissions in writing were presented to the Learned Trial Magistrate.

(c) When the Learned Trial Magistrate did not properly and/or adequately consider the submissions supported by the relevant authorities and gave his decision on the issue the same day without mature deliberation.

(ii) That the Learned Trial magistrate erred in law and in fact in not adequately and/or properly evaluating the evidence of the Prosecution witnesses on one hand and that of the Appellant and his witnesses on the other hand having regard to the charge in question and the evidence as a whole.

(iii) That the decision of the Learned Trial Magistrate is unreasonable and cannot be supported having regard to the evidence as a whole and the offence with which the Appellant was charged with.

(iv) That the evidence did not substantiate beyond reasonable doubt the ingredients of the offence as charged having regard to the evidence as a whole.

(v) That the Learned Trial Magistrate erred in law and in fact in taking irrelevant matters into account and not taking relevant matters into account in coming to his decision.

(vi) That the Learned Trial Magistrate did not adequately and/or properly consider and/or misdirected himself on the issues of corroboration and onus and burden of proof and in particular having regard to section 10 of the Juveniles Act.

(vii) That the sentence is harsh and excessive.

(viii) In any event, the Learned Trial Magistrate was biased against the Appellant in favour of the Prosecution and he erred in law and in fact in not disqualifying himself when objection was taken before the Trial commenced that he do disqualify himself and the following are relevant:-

• (a) The Learned Trial Magistrate had refused bail to the Appellant pending Trial and the Appellant was granted bail when application was made to the High Court.
  
• (b) When the matter was set down for hearing on 11th day of October the Counsel for the appellant had to go to Sydney because of his wife’s serious illness and consequent treatment and he had on 5th day of October applied for adjournment of the case from 11th day of October to 16th day of October or 1st day of November and the Prosecution was agreeable to consent.
  
• (c) The application was referred on 5th day of October and the Prosecution was informed by the Appellant’s Counsel in writing on 6th day of October of the refusal for adjournment by the Court.
  
• (d) Then on 10th day of October without any consultation with the Appellant’s Counsel the Prosecution applied for an adjournment of the Court to allow the prosecuting officer to attend same meeting and the Learned Trial Magistrate without even consultation (leave alone Consent) adjourned the matter.
  
• (e) This caused serious concern as to the apparent bias of the Learned Trial Magistrate
  
• (f) Accordingly, on the next mention date formal objection to him hearing the case was taken but over-ruled.
  

[8] I am grateful to Dr. Khan and Ms. Cokanasiga for their helpful submissions. I deal with the grounds of appeal below.

Charge

[9] Under the first ground of appeal the appellant contends that the charge was defective because it did not allege that the indecent assault was committed on a girl or a woman, which is an essential element of the offence. The appellant further contends that the entire proceedings were a nullity because of the alleged defect in the charge.

[10] At the trial an objection was taken to the charge in its current form after the close of the prosecution case. The appellant relied on the same authorities as now being relied on appeal to support his contention. The learned Magistrate found the charge was not defective.

[11] The charge was laid pursuant to section 154 (1) of the Penal Code. Section 154(1) reads:

Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony...

[12] Section 154 (1) makes it very clear that for an offence to exist under its provision, the alleged victim of the indecent assault has to be a female. The offence of indecent assault like many other sexual offences under the Penal Code in my view is gender biased. Consequently, males cannot be victims of crimes such as indecent assault or rape, which is not in uniformity with the modern notions of these crimes. There is a need for reform in this area of law.

[13] The drafting of charges is governed by the Criminal Procedure Code. All charges must comply with the provisions of section 119 which reads:

Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.

[14] Section 122 of the Criminal Procedure Code provides the rules for the framing of charges. Section 122 states:

The following provisions shall apply to all charges and informations and, notwithstanding any rule of law or practice, a charge or information shall, subject to the provisions of this Code, not open to objection in respect of its form or contents if it is framed in accordance with the provisions of this Code-

(i) a count of a charge or information shall commence with a statement of the offence charged, called the statement of offence;

(ii) the statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence;

(iii) after the statement of the offence, particulars of such offence

shall be set out in ordinary language, in which the use of technical terms shall not be necessary:

Provided that where any rule of law or any Act limits the particulars of an offence which are required to be given in a charge or information, nothing in this paragraph shall require any more particulars to be given than those so required.

[15] The appellant’s contention of defective charge is based on the following authorities: DPP v Solomone Tui 22 FLR 4, Ram Hit v Lautoka Rural Local Authority Criminal Appeal No. 137 of 1977, Rajendra Deo v R 26 FLR 116, Smith v Moody [1902] UKLawRpKQB 143; [1903] 1 KB 56, and Rameshwar Prasad v State HAA 058 of 2006.

[16] I have considered these cases and have found none to support the proposition that a charge pursuant to section 154 (1) of the Penal Code must allege that the act of indecent assault was committed on a woman or girl instead of just naming the female complainant in the particulars of offence.

[17] In Tui’s case, the prosecution intended to charge the accused with the offence of night breaking into the dwelling house of another with intent to commit felony, namely, theft. However, the statement of offence specified the wrong section of the Penal Code and the particulars failed to allege the specific mens rea required for burglary. After directing his mind to whether the defect comes within the scope of section 323 of the Criminal Procedure Code [now section 342 of the CPC], Grant C.J. said:

Despite its apparent scope, it has been held that the provisions of this section cannot validate a fundamental error going to the root of the matter; such as the failure to include in the charge a necessary ingredient of the offence in question, duplicity in a charge, want of jurisdiction, or a charge which discloses no offence known to law (vide Atterton v Browne (1945) L.R. (K.B.D.) 122; Edwards v Jones (1947) L.R. (K.B.D.) 659; R v. Nottingham Justice Ex parte Brown (1960) 3 All E.R. 625; and Garman v Place (1969) 1 All E.R. 62); and an appellant court has no power to amend the original charge (Garfiend v Maddocks (1973) 57 Cr. App. R. 372). As was stated by Humphreys J. in the English Court of Criminal Appeal in R. v. West (1948) 64 T.L.R. 241 at 243; "It is an essential feature of the criminal law that an accused person should be able to tell from the indictment the precise nature of the charge or charges against him so as to be in a position to put forward his defence and to direct his evidence to meet them." (see also Robertson v Rosemberg (1951) 1 T.L.R. 417; and Stephenson v. Johnson (1954) 1 All E.R. 369).

[18] On this basis, Grant C.J. held the charge was fundamentally defective and the conviction was quashed.

[19] In Ram Hit’s case, the accused was charged with an offence under the Public Health Regulations (Cap. 91). The said Regulations made it an offence for the owner of a newly constructed building to permit occupation or use of the building without first obtaining from local authority a certificate of inspection. The particulars of the offence did not allege that the accused was the owner of the building that was the subject of the charge. No evidence was adduced to show that the accused was the owner. Albeit the charge was held defective, Williams J observed:

It may be obvious from the judgment or summing up that the court is fully aware of the proper offence and has assumed that it is correctly drafted, the mode of defence may in addition reveal that they had in mind the offence as it ought to have been charged and the court may convict of the offence as it ought to have been charged. In such circumstances there may be occasions, and I put it no higher, when the defect in the charge is not fatal.

[20] In Rajendra Deo’s case, a charge in respect of the offence of criminal trespass pursuant to section 218 (2) of the Penal Code was held to be fundamentally defective because of the omission of the word "at night" in the particulars of the offence.

[21] In Smith v Moody, the accused was convicted of an offence under the English Protection of Property Act, 1875. The charge did not specify what property of the respondent had been injured, which was an essential element of the offence. The King’s Bench Division held that the conviction was bad on its face because the charge was defective.

[22] A similar objection to the charge was raised in Rameshwar Prasad. Govind J held the charge was not defective because the statement of offence alleged "indecently annoying the modesty of a female" and therefore the omission of the word "female" in the particulars was not fatal.

[23] In Shekar v State Criminal Appeal No. HAA 0056 of 2004, the appellant on an appeal against conviction on a corruption charge contended that the omission in the particulars of the offence of the name of the person from whom he received the money, whether the payment was for himself or another person and whether it was made as an inducement or reward were fatal defects and, on the authority of Tui’s case, meant that no offence had been disclosed. The Court of Appeal rejected the appellant’s argument and said:

We cannot accept that those omissions were such as to render the charges defective. The purpose of the charge is to ensure that the accused person knows of the offence with which he is being charged. Whilst the particulars should be as informative as is reasonably practicable, it is not necessary slavishly to follow the section in this Act.

[24] The Court of Appeal took a similar view in State v Brijan Singh [2007] AAU0097/05S. The Court said:

The purpose of the particulars of offence is to indicate to the person accused of the offence the nature of the case the State intends to present. It does not need to set out the whole evidence and it is sufficient if it indicates how the case will be presented.

[25] The charge in the present case in my view complied with the Criminal Procedure Code. The charge commenced with a statement of offence, identified the offence of indecent assault and made reference to section 154(1) of the Penal Code. The particulars of the offence specified that the appellant "on the 5th day of May, 2007, at Kulukulu Sigatoka in the Western Division had unlawfully and indecently assaulted Sainimere Kilitale". There was absolutely no doubt that the complainant Sainimere Kilitale was a female and the appellant knew that his accuser was a female. For these reasons, I hold the charge was not defective.

[26] This ground of appeal fails.

Evidence of a Child witness

[27] I deal with grounds (ii) to (iv) together.

[28] Section 10 of the Juveniles Act states:

Evidence of child of tender years

10.(1) Where in any proceedings against any person for any offence or in any civil proceedings any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may proceed not on oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of his evidence and to understand the duty of speaking the truth; and the evidence though not given on oath but otherwise taken and reduced into writing so as to comply with any law in force for the time being, shall be deemed to be a deposition within the meaning of any law so in force:

Provided that where evidence is admitted by virtue of this section on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated.

[29] Under the Juveniles Act, the word "child" means a person who has not attained the age of 14 years (see, s. 2). The complainant was 8 years old when she gave evidence. She was clearly of a tender age. Her evidence was uncorroborated. Section 10 prohibits imposition of a conviction on the uncorroborated evidence of an unsworn child. The learned Magistrate’s failure to comply with section 10 in my view is a material irregularity in the proceedings.

[30] In Lal Khan (1981) 73 Cr App R 190, the accused was convicted of living on the earning of prostitution of a tender aged girl. The complainant was 12 years old when she gave evidence. The trial judge allowed the complainant to give sworn evidence without making any enquiry whether she understood the nature and solemnity of an oath. At the time England had an identical provision as section 10 in the Children and Young Persons Act 1933. On appeal the Court of Appeal held:

...that pursuant to section 38(1) of the Children and Young Person Act 1933 where, as in the present case, a young aged 12 was about to be called to give evidence, the judge should, in his discretion, have questioned her as to her understanding of the nature and solemnity of an oath in the presence and hearing of the jury; as that was not done, and the case was a sexual one involving the unsworn uncorroborated evidence of a witness, it was not one for the application of the proviso to section 2 (1) of the Criminal Appeal Act 1968; accordingly, the appeal would be allowed and the conviction quashed.

[32] In Fazal Mohammed v State (1990) 91 Cr App R 256, the Privy Council considered a provision in identical terms to section 10 in Trinidad and Tobago. In that case the trial judge allowed a 13 year old girl to give sworn evidence without making any enquiry about whether the witness understood the nature and solemnity of an oath. The Privy Council held that girl’s evidence was inadmissible.

[33] The nature and extent of the enquiry which a trial court should conduct under section 10 was considered by Dyke J in Suresh Chand v R Lautoka Criminal Appeal No. 77 of 1983. His Lordship said:

There are a number of matters for determination and record by the court. The court must determine the child’s age, as that is relevant to the issue of whether or not he is of tender years. If the child is of tender years, the court must then ascertain whether the child understand the nature of an oath, such opinion should be recorded, in which case the child may be sworn. If the court is not of such opinion, that again is a matter of record. The court must then ascertain whether the child is possessed of sufficient intelligence to understand the duty of speaking the truth and to justify the reception of his evidence. Again, if the court is of the opinion that the child is so possessed of sufficient intelligence, the court’s opinion in the matter should be recorded, and the child may then give unsworn evidence. If the court holds the contrary opinion, that should also be recorded and the child may not give evidence.

[34] As a matter of record the learned Magistrate made none of the enquiries in accordance with Suresh Chand’s decision. The record shows the complainant gave unsworn evidence. There is nothing in the record to suggest that the learned Magistrate ascertained that the complainant possessed sufficient intelligence to understand the duty of speaking the truth and to justify reception of her evidence. Without such enquiry the reception of the complainant’s evidence was improper. The appellant was no doubt convicted on the basis of the inadmissible and uncorroborated evidence of the complainant. For these reasons, the conviction is unsafe and must be quashed.

[35] The appeal having succeeded on this point, there is no need to consider the other grounds of appeal.

Result

[36] Appeal against conviction allowed.
Conviction quashed and sentence set aside.
No order for retrial.

Daniel Goundar
JUDGE

At Lautoka
Monday, 5 May 2008

Solicitors:
Sahu Khan and Sahu Khan, Ba for the Appellant
Office of the Director Public Prosecutions, Sigatoka for the State