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Kishore v State [2000] FJLawRp 42; [2000] 1 FLR 150 (28 July 2000)

[2000] 1 FLR 150

IN THE HIGH COURT OF FIJI

KAMAL KISHORE

v

STATE

High Court Criminal Appeal
Pathik, J
28 July, 2000
HAA 36/00 (on appeal from MC Crim. Case. 2757/99S)

Rape - appeal against conviction and sentence - step brother had carnal knowledge of 13 year old - grounds on which appeal can be entertained when appellant had previously pleaded guilty - whether miscarriage of justice that prosecutor failed to reveal to court the appellant had denied the allegation - Penal Code (Cap. 17) ss149 and 150.

The Appellant appealed on grounds that a change of plea to guilty was taken in the absence of his counsel, facts were misrepresented in court - the medical report was unsatisfactory, and complaint was filed late. The Court found that the conviction was a miscarriage of justice.

Held - the Prosecutor misled the court by failing to reveal that the appellant had denied the allegation in a police interview.

R v Stewart [1960] VicRp 16; [1960] V.R. 106 followed

Appeal allowed, conviction and sentence quashed and new trial ordered. Defendant bailed to appear in Magistrates' Court on conditions.

Other cases referred to in judgment
Arthur Fred Hancox 8 Cr. App. R. 193
R. v Rhodes (1914), 11 C.A.R. 33
R. v Forde [1923] 2 K.B. 400

John Semisi for appellant
Resina Senikuraciri for respondent

28 July 2000.

JUDGMENT

Pathik, J

This is the appellant's appeal to this court through his present counsel Mr. John Semisi to have his conviction for the offence of rape at the Magistrate's Court Suva quashed and the matter remitted to the lower Court for the appellant to be given a proper and fair trial on the grounds that the said conviction is unsafe and has resulted in serious injustice to the appellant.

The facts

The Particulars of Offence are that on 23 June 1999, the appellant at Omkar Feeder Road, Nasinu in the Central Division, had carnal knowledge of Saleshni Devi Verma, who had just turned 13, without her consent.

The facts of the case are as follows (as outlined by learned counsel for Respondent in her written submission):

At about 1.15 p.m. on 23/6/99, the appellant went to the house of the victim who was alone at home, tending to the cooking while her mother was in the plantation and her father at work. Upon seeing the victim alone, the appellant forcibly grabbed the complainant and pulled her into her step-mother's room where he forced her to lie down on the bed. When the complainant tried to yell out, he covered her mouth with one hand and used the other hand to pull her panties down. Then he forcibly had sex with the complainant. After raping the complainant, the appellant left the house. When mother returned from the plantation, the complainant informed her of the incident. The matter was then reported to her father and later they went to the police station to file the report. The complainant was medically examined which revealed a broken hymen and injury on the vagina consistent with the history given by the complainant. The appellant was located, interviewed and charged for the offence of rape contrary to sections 149 and 150 of the Penal Code Cap. 17

Appellant's counsel's submission

The learned counsel for the appellant made submissions pointing out to court certain unsatisfactory features of the case. He said that there were misrepresentations when the typed facts were put before the Court. The accused did not admit his guilt when interviewed contrary to what the typed facts say in this regard. He had consistently maintained his innocence to the police when interviewed and to the Court on 13 February 2000. For some unknown reason his plea was again taken on 25 February in the absence of his solicitor Mr. P. Howard and he pleaded guilty.

Mr. Semisi further submits that the Medical Report which was prepared after 20 days cannot be said to tie up with the sexual intercourse having taken place which materially says that 'hymen not intact'. He says that the Medical Report is highly unsatisfactory and requires clear scrutiny which can only be done if a trial is ordered which will allow the doctor to testify.

Finally he submits that although it is alleged that the victim reported the alleged incident to her mother the same day, it was not reported to police until 12 July 1999 i.e. some 20 days after the alleged incident.

Respondent's counsel's submissions

The learned Counsel for the respondent submitted that the appellant had the opportunity to elect a counsel and he did have Mr. P. Howard to represent him in the beginning. But for some reason counsel failed to turn up on subsequent dates. Thereafter on the day of the hearing appellant changed his plea to one of guilty and this was done "voluntarily".

Counsel submits that although the appellant was escorted from his home to court on a day other than the day set down for hearing, though he was on bail, is not a ground of appeal and should be dismissed as there is "no evidence, report or record of coercion or interference by the police in this case".

She says that the appeal against conviction and sentence should be dismissed.

Consideration of appeal

The appellant was on a serious charge involving a very young girl aged 13 years. He was the step brother of the complainant.

The learned counsel for the appellant made certain submissions which need serious consideration.

Although he was represented initially by solicitor Mr. P. Howard, but for some reason counsel failed to turn up on the adjourned dates. Although the case was adjourned for hearing on 23 March 2000, the appellant was brought from his home before that date i.e. on 25 February 2000 to be dealt with. No reason was given why this was done. Evidently counsel was also not informed of this.

I agree that the manner in which he was made to plead twice to the offence on different occasions and the way he was brought to Court must have left the appellant with a feeling of injustice particularly when he was denied representation through no fault of his own in the face of his previous plea of not guilty.

It is clear that counsel let the appellant down very badly by not continuing to appear after his first appearance. This is being discourteous to Court if not a contemptuous behaviour on the part of counsel. Counsel has failed in his duty to Court and to his client. At this juncture I would draw the attention of legal practitioners to the Practice Direction dated 7th November 1972 under the hand of the then Chief Justice Sir John A. Nimmo. It is in part as follows:

Once counsel has informed the Court without qualification that he is appearing for an accused person, he will not withdraw from the defence of his client except with leave of the Court.

The Court will not regard as an adequate ground for leave to withdraw a desire by counsel to undertake a subsequent commitment, whether it be a case in any other Court or whether it be a sitting of Parliament or that his fee has not been paid wholly or in part.

If the Court refuses to grant an application by counsel to withdraw from a case because the Court considers the grounds on which the application is based are inadequate, and counsel thereafter declines to represent the accused and leaves the Court his conduct should be brought to the attention of the Chief Magistrate or the Chief Registrar as the case may be, to enable a report to be placed before the Council of the Law Society for appropriate action to be taken.

The circumstances in which he changed his plea ought to have alerted the learned magistrate about possible reasons for doing so. I would have thought that the Magistrate would have queried the sudden change of plea to one of guilty. If that was done it may have formed some basis for questioning the unequivocal nature of the plea.

There is great force in Mr. Semisi's submission that there was misrepresentation when the facts were outlined to Court in which the appellant is stated to have admitted his guilt before the learned Magistrate. It is abundantly clear from the interview of appellant by Police that he denied the allegation and maintained plea of not guilty when plea was taken. It clearly was a misrepresentation and distortion of facts wittingly or unwittingly when the prosecution told the Magistrate that the appellant admitted the offence "upon further enquiry". This was far from the truth.

It is on the above material that this Court has to consider the appeal against conviction. In this regard I adopt the following passage from the judgment of Herring CJ and O'Bryan J in R v Stewart [1960] V.R. Full Court 106 at 108-109:

That the Court can entertain an appeal against a conviction upon a plea of guilty, is undoubted, but it is only in very exceptional circumstances that it can do so. Halsbury, (3^rd ed.), vol. 10, p.521. Avory, J., when delivering the judgment of the Court of Criminal Appeal in R. v. Forde, [1923] 2 K.B. 400, put the matter thus, at p.403: 'A plea of guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit that he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.' In R. v. Rhodes (1914), 11 C.A.R. 33, it was made clear that the court must be satisfied that there really has been a mistake. The mistake must, moreover, be one that led the accused to plead guilty.

I find that in this case there was a clear mis-statement of the fact that the appellant admitted the offence on "further enquiry". An unfair advantage was taken of the appellant thereby by misleading the Magistrate who placed reliance on that statement when convicting the appellant. Why did the prosecutor hide the fact that the appellant had denied the allegation when interviewed.

In these circumstances, on the facts as outlined particularly on the misrepresentation the appellant could not in law have been convicted of the offence charged. Although an accused is entitled to look to the court before which he or she comes to offer protection from a conviction which is not, in law, sustained by the fact, here the prosecutor hid the true and the most essential fact contained in the interview, from the Court.

The Court relies on evidence or facts and comes to a conclusion. Had the undisclosed fact, and a crucial fact at that, been divulged to Court the case may have taken a different turn. This is a case in which on the facts and circumstances of this case I would adopt the following words of Pickford J in Arthur Fred Hancox 8 Cr. App. R. 193 at 197 a case in which it was held that "the Court will not set aside a verdict on questions of fact except on the strongest evidence":

"There have been cases where the Court has thought fit to set aside a verdict on a question of fact alone, but only where the verdict was obviously and palpably wrong. Both cases are rare. This case turned on the manner in which the witnesses gave their evidence; ...."

In these circumstances, the conviction and sentence entered by the Magistrate cannot be allowed to stand.

Conclusion and orders

For these reasons, I find that there has been an apparent miscarriage of justice from the plea of guilty which was entered in the circumstances I have stated hereabove. I am of the opinion that the appeal should be allowed as there is an issue of fact to be tried and the conviction quashed and it is so ordered.

The case is remitted to the Magistrate's Court with an order that there be a new trial. The appellant is therefore ordered to be released from Prison forthwith upon him entering into a bond in his own recognizance in the sum of $1000 with a surety of like amount to appear in the Suva Magistrate's Court on 7 August 2000 at 9.00 a.m. The appellant is further ordered: (a) that he report to the Police Station nearest his home once a week on Saturdays before 6.00 p.m. commencing from 5 August 2000; (b) that he reside away from the complainant/ victim until further order and (c) that he surrender his Passport, if any, to Court.

Appeal allowed.

Marie Chan