Ali v State [1990] FJCA 9; AAU0016u.89s (19 October 1990)

Fiji Islands - Frazan Wazid Ali v The State - Pacific Law Materials

IN THE FIJI COURT OF APPEAL

CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 16 OF 1989
(High Court Criminal Case 22 of 88)

p class=MsoNormal alal align=center style=text-align:center> BETWEEN:

1. FRAZAN WAZID ALI
s/o Ali Farook

2. SAVITRI DEVI
f/n Yankat Ali)
Appellants

AND:

STATE
Respondent

Both Appellants in Person
Mr I. Mataitoga (D.P.P.) for espondent

Date of Hearing: 21st May, 1990
Delivery of Judgment: 19th October, 1990

JUDGMENT OF THE COURT

At the hearing of this appeal both Appellants indicated clearly that they wished to appeal against sentence only. The first Appellant was convicted on two counts (1st and 3rd) of Rape contrary to sections 149 and 150 of the Penal Code by the High Court at Suva on 9th November 1989. He was sentenced to 5 years imprisonment on each count, the sentences to run concurrently. The second Appellant was jointly tried with the first Appellant as an aider and abettor and she too was convicted on the same two counts and was sentenced to 2 years imprisonment on each of the counts, to be served concurrently.

It will be useful to set out the brief facts of this case first.

The first Appellant married the second Appellant in April 1986. They were living in a flat in Waimanu Road in Suva. Sometime before June 1986 the complainant Sarita Devi Singh with her mother Bimla Kumari and her three brothers and a sister moved in to live with the first and the second Appellant. The complainant at that time was about 13 1/2 years of age and was attending school in form 3. On 6th June 1986 the second Appellant took the complainant to the bus stand on the pretext of attending a religious ceremony. Instead the first Appellant came in a taxi and they all went to Capital Motel in Suva where the same night the Appellant had sex with the complainant against her wishes. The second Appellant physically assisted the first Appellant to commit the offence. They threatened her not to tell anyone. This incident was the subject of the first count on which both were convicted. A similar incident allegedly took place again next morning. This was made the subject of the second count. However, as both Appellants were found not guilty on this count we shall ignore it completely. On 11th June 1986 the second Appellant asked the complainant not to go to school that day so as to assist her in making Diwali sweets. On this day the first Appellant again raped the complainant being aided and abetted by the second Appellant. This incident was the subject of the 3rd count on which both were convicted. It was not until about the third week of June 1986 that Sarita Devi Singh complained about being raped to her sister-in-law who then told the complainant's mother about the incidents. On 22nd June 1986 the complainant accompanied her mother to the Samabula Police Station where she lodged a complaint against the Appellants. On 23rd June 1986 the first Appellant was taken to the Police Station and questioned under caution. He confessed to having raped her on the 6th and the 14th of June. He was not charged. The second Appellant was also interviewed the same day but she too was not charged although according to Police she also had confessed. In fact it was not until 28th of January 1988, about 2 1/2 years later, that the 2 Appellants were charged. Their trial in the High Court commenced on 6th November and concluded on the 9th of November 1989.

The first Appellant's main complaint before this Court was with respect to the delay in charging him and the subsequent delay in disposing of his case. Given the fact that the Appellant confessed to the crime the time taken to charge him does appear to have been unusually long. However, having regard to the information elicited by the trial judge as to reasons for the delay in charging the Appellant and bearing in mind the written chronology of events presented by the Director of Public Prosecutions we are satisfied that the delay complained of did not occasion any real injustice or prejudice to the Appellant in so far as the question of sentence is concerned. In any case he had not complained about the delay previously. In fact as far as the trial is concerned part of the delay can be attributed to his failure to attend Court and part to the Court's difficulty in fixing a hearing date due to one valid reason or other. The Appellant was on bail from the time he was charged till the time of his conviction. Prior to being charged he was under no constraints although the possibility of being charged during the long intervening period must have been a matter of some concern to him.

Once an accused is charged he is entitled to be tried within a reasonable time. However his right to trial within a reasonable time involves a balancing test in which the conduct of the prosecution and the Defendant is carefully weighed but this balancing test has to take place against the background of any events over which neither party has any control.

We are satisfied that this Court will not be justified in reducing the sentence solely on the ground of delay bearing in mind the particular circumstances surrounding this case.

It is true that at the time of the offence the Appellant was only 23 years of age and had no previous conviction. Had he had a relevant previous conviction we would have considered it to be an aggravating factor. On the other hand he had pleaded not guilty and had thus put the victim, a young girl, to the ordeal of testifying in Court and thus forced her to relive the traumatic events of June 1986. Furthermore, there was an element of trust which the two accused had breached.

In the circumstances we do not consider that the sentence of 5 years on each count to be served currently can be considered manifestly excessive. We therefore have no hesitation in dismissing the first Appellant's appeal.

The second Appellant is 38 years old. Although she has some prior convictions they all relate to dishonesty. Her family background is an unhappy one. She had five children -four from a previous marriage and one from the first Appellant. But her last child, an infant, is now dead. Her surviving children were aged between 5 and 12 when she was charged in 1988. Her father died in 1986. She made a strong plea for leniency. She asked that she be released so she could look after her children. One of her daughters is in the Dilkusha Girls' home.

It is obvious that she committed the present offence under her husband's influence and as the trial judge observed she was desirous of keeping him satisfied. We feel that this Appellant is truly remorseful having suffered considerably by her imprisonment and by being separated from her children. This separation must have had traumatic effect on the children also. Only some months now remain for this Appellant to complete her sentence having regard to her entitlement to 1/3 remission. Whilst the sentence of 2 years cannot be considered manifestly excessive we are satisfied that no useful purpose will be served in keeping her in prison any longer. Consequently we set aside the sentence passed on her on both counts and in lieu thereof impose a sentence that will allow for her immediate release.

Sir Timoci Tuivaga
President

Sir Moti Tikaram
Justice of Appeal

Sir Ronald Kermode
Justice of Appeal

Aau0016u.89s