IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 15 of 2018

RAVNEET KUMAR

v

STATE

Counsels:	Mr. A. Sen for the Appellant
		Mrs. D. Kumar for the State

Date of Hearing:  	10 August 2018
Date of Judgment: 	24 August 2018

JUDGMENT

1.	On the 9th March 2018, the accused was found guilty in the 	Magistrates’ Court at Labasa of one count of Indecent Assault in 	which he was charged with holding and touching the breasts of 	LS. He was sentenced to a term of imprisonment of 2 years 6 	months, with a minimum to be served of one year and eight 	months.

2.	The Appellant appeals against conviction and sentence. 

	Grounds of Appeal

3.	The grounds of appeal against conviction are as follows. 	(reproduced verbatim) 

1.	That the learned Magistrate erred in law in failing to give 	an option to the accused to remain silent upon close of 	prosecution case in accordance with section 179(1) of the 	Criminal Procedure Act. 
2.	That the learned Magistrate erred in law in convicting the 	accused for indecent assault when there was no such 	evidence.
3.	That the learned Magistrate erred in law in failing to 	properly evaluate the evidence in the case including that 	of the defence. 
4.	That the learned Magistrate erred in law and in fact in 	taking into consideration the answers given by the 	prosecution witnesses in cross-examination.
5.	That the trial was not conducted fairly and the Magistrate 	failed to analyse the evidence and give reasons for 	accepting or rejecting the evidence of the witnesses.
6.	That the learned Magistrate erred in law in holding that 	the complainant had to go through an ordeal when there 	was no evidence supporting the same.
7.	That the learned Magistrate erred in law in holding that 	the witnesses evidence were consistent with that of LS 	evidence when none of the witnesses had witnessed the 	alleged assault.
8.	That the learned Magistrate imposed a sentence which 	was harsh, excessive and unconscionable and further 	took into consideration irrelevant matters and failed to 	take into consideration relevant matters.
9.	That the learned Magistrate erred in law in failing to 	correctly apply the principles of sentencing before setting 	a minimum term to be served before pardon may be 	considered. 

	Facts

4.	The facts as set out in the Judgment of the Magistrate are that 	on 3 July 2011,the victim (“LS“)was in the kitchen lighting a fire 	when the accused (appellant) approached her from behind and 	grabbed her breasts, telling her he wanted to have sex with her. 	She shouted because she did not like what the accused did to 	her and she pushed his hands away, went outside and called 	her father-in-law. She told her father-in-law what the accused 	had done. The accused reacted by saying; “why did you call 	your father-in-law you bitch.” Her father-in-law lent her his 	phone to call her husband to tell him what had happened. He 	returned home and a report was made to the Police. LS knew 	the appellant as he was renting in her house.

	Ground One

5.	Counsel submits that in not following the mandatory 	provisions of s.179 (1) of the Criminal Procedure Act 2009, the 	conviction must be quashed. He submits that by not following 	this stipulation, an accused’s Constitutional right to silence 	(under s.4 (j)) is prejudiced. The section reads:

“179-(1) At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused person sufficiently to require the making of a defence, the court shall-
(a)	again explain the substance of the charge to the accused; and
(b)	inform the accused of the right to-
(i)	give evidence on oath from the witness box and that, if evidence is given , the accused will be liable to cross-examination
(c)	ask the accused whether he or she has any witnesses to examine or other evidence to adduce in his or her defence : and
(d)	the court shall then hear the accused and his witnesses, and any other evidence (if any)”

         (2) (irrelevant to this appeal) 

	(Emphasis of the word “shall” has been made by me)

6.	State Counsel responds by relying on the fact that the accused 	was represented by experienced counsel at trial and he must 	have been advised of his rights in defence.

7.	This matter has been dealt with previously by the Court of 	Appeal in Ovini Tuitoga [2007] AAU63/06 (25 June 2007) 	(Ward,P. Ellis J.A. and Penlington JA)  in discussing the same 	section (s.211) in the then Criminal Procedure Code. The Court 	held:

“we are of the opinion that a failure to comply with s.211 does not of itself necessarily invalidate the trial. That would be so, however if the trial was otherwise unsatisfactory and that would result in the quashing of the conviction”

and later…..” While there was an error of law on the part of the Magistrate there has not been a substantial miscarriage of justice”

8.	In following that case therefore this Court would say that it 	would be prudent for Magistrates to follow the directions of s. 	179 of the Criminal Procedure Act, but a failure to do so is not 	in itself fatal to any conviction. Failure to comply however can 	be a factor to consider when other matters might suggest that 	there has been a miscarriage of justice.
	I will return to this ground.

	Ground Two

9.	This ground, that there was no evidence of indecent assault, is 	difficult to understand and it was not a matter addressed by 	Counsel in his written submissions. The victim gave evidence 	that the accused grabbed her breasts from behind, which 	without the consent of the victim is indecent assault in law. 	This ground fails.

	Ground Three

10.	In his judgment the learned Magistrate says of the defence 	case; - “I find the accused not to be a credible witness. His 	evidence is self-serving “.

11.	Counsel for the accused submits that this is an inadequate 	manner in which to deal with the accused’s evidence, after he 	has analysed and accepted the prosecution evidence in detail. 	The Court would tend to agree. Any accused person who is 	denying an allegation of crime made against him will give 	evidence that is “self-serving”. That is his constitutional right 	under s.14 (2)(d) to defend himself .

12.	This Court appreciates the pressure that Magistrates work 	under, writing many judgments every week and it is not 	expected that a Magistrate would give a detailed analysis of the 	accused’s evidence, detail that one would expect from a higher 	appellate Court. What must be shown however are words that 	show that the Magistrate has turned his/her mind to the 	evidence of the accused and taken it into account. The 	Magistrate has done that in this case and as a result the ground 	fails

	Ground Four

13.	Complaint is made that the learned Magistrate took into 	account the answers of prosecution witnesses in cross-	examination. 

14.	It is trite law that all evidence given before any court is evidence 	and answers to questions in cross-examination in the 	affirmative are to be accorded the same weight as evidence given 	in chief.

15.	Cross-examination of prosecution witnesses is in the hands of 	an unrepresented accused or usually in the hands of defence 	counsel. If answers are elicited that defence counsel doesn’t 	want considered, then it is entirely the result of an incompetent 	cross-examination. 

16.	Unsurprisingly, this ground has not been developed in 	Counsel’s written submissions and it is rejected.

17.	It is a pity that such an unarguable ground is filed, wasting the 	Court’s time.

	Ground Five

18.	This ground is that the trial was unfair and that the Magistrate 	failed to properly analyse the evidence of the witnesses.

19.	Counsel fails to submit in what way he thought that this trial 	was unfair and the Court has already dealt with the analysis of 	the Accused’s evidence in para 12 above. 

20.	After rehearsing the evidence of all four prosecution witnesses 	in paras.8 to 11 of his judgment, the Magistrate then in para 14 	analyses that evidence.

21.	This is yet another meritless ground and it is dismissed.

	Ground Six

22.	In his judgment, the Magistrate said this of the victim’s evidence

“The fact that LS has to go through the ordeal of this case up  to trial shows the truth in her story”. 

23.	It is rather difficult to determine what the Magistrate actually 	meant by this phrase, but suffering an ordeal is certainly not a 	pre-requisite for telling the truth. 

24.	A witness’ evidence must be assessed on credibility and perhaps 	demeanour but not on what the Magistrate perceives to have 	been her ordeal leading up to and in the trial.

25.	Such an astonishing declaration suggests that the learned 	Magistrate has come to his finding of guilt not by factual 	analysis but through sympathy and bias.
26.	This ground of appeal succeeds.

	Ground Seven

27.	In analyzing the evidence of the prosecution witnesses, the 	learned Magistrate states that apart from the victim, the three 	other witnesses support her testimony. None of those three saw 	the indecent assault; all they can do is to confirm that the 	victim ran out onto the verandah shouting. There is nobody who 	can confirm the actual element of sexual contact.

28.	This ground too succeeds.

	Discussion

29.	Given that two of the grounds succeed, I return to the first 	ground and would find that that now too would succeed. As 	discussed in that ground, with other factors leading to an 	unsatisfactory trial, that ground now succeeds.

30.	With three grounds now succeeding, the conviction against the 	accused cannot stand. The analysis of the evidence is unfair 	and conclusions have been reached on irrelevant principles.

31.	Although it is not a ground of appeal, the Court notes that the 	evidence was heard and completed on the 18th August 2016 and 	the judgment as delivered on 9th March 2018, more than 18 	months later. This delay in itself would lead to the presumption 	of unfairness and a miscarriage of justice.

32.	The conviction is quashed and the sentence set aside.

	Orders

1.	The appeal succeeds and the conviction is quashed
2.	The appeal against sentence falls away 
3.	The sentence passed below is set aside.

	P. K. Madigan
      Judge

At Labasa
24 August 2018