Raj v State [2012] FJCA 45; AAU0038.2010 (2 July 2012)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU 0038 OF 2010
[High Court Criminal Action No.HAC 09/2010]

BETWEEN:

ANAND ABHAY RAJ
Appellant

AND:

THE STATE
Respondent

COUNSEL : Appellant in Person
Ms. Pauline Madanavosa for Respondent

Hearing Date : 25/06/2012
Ruling Date : 02/07/2012

RULING

1. The Appellant has filed the application moving for leave of this court to appeal against the conviction and sentence imposed on him by Justice Priyantha Fernando, High Court Judge sitting at the Suva High Court. The Appellant was charged with four counts of Rape contrary to section 149 and 150 of the Penal Code Cap 17 and one count of Indecent Assault contrary to section 154(1) of the Penal Code Cap 17. On the 9th of June 2010, the Appellant was convicted after a full trial. On the 10th of June 2010 the Appellant was sentenced as follows:

Count 1 (Rape)	- 16 years imprisonment
Count 2 (Rape)	- 16 years imprisonment
Count 3 (Rape)	- 16 years imprisonment
Count 4 (Rape)	- 16 years imprisonment
Count 5 (Indecent Assault)	- 3 years imprisonment. All the sentences to run concurrently.

3. The Appellant was sentenced to 16 years imprisonment with a non parole period of 12 years.

4. At the commencement of the hearing both appellant and State Counsel appearing for respondent made their submissions.

5. Appellant filing his notice of appeal advanced 5 grounds in support of his application for leave to appeal against the conviction and sentence:

i) That the learned trial judge erred in law in not properly directing himself or in misdirecting himself and the assessors on the issues of burden and standard of proof.

ii) That the learned trial judge erred in law in misdirecting himself and the

assessors on the elements of the offence of Rape and Indecent Assault.

iii) That the learned trial judge erred in law in misdirecting himself and

the assessors on the principles of circumstantial evidence.

iv) That the learned trial judge erred in law and in fact in not properly and

or adequately dealing with the defence case.

v) That the sentence is harsh and excessive in the circumstances of the case.

6. The appellant filing submission on 01/05/2012 advanced 3 grounds of appeal against the sentence:

i) That the trial judge erred in law and in fact when he failed to inform the assessors of the inconsistencies of the statement of prosecution witnesses.

ii) That the Appellant strongly challenges the credibility and reliability of the statement of the victim.

iii) That the Appellant criticize the manner in which the police conducted the investigation process.

7. I heard the application for leave to appeal against the conviction and sentence on 25/06/2012. Ms. Pauline Madanavosa for the state in her written submission dated 19/06/2012 submits:

"C. We respectfully submit that there is no merit in ground 2 and 3 of the Appellant's amended grounds of appeal except for the ground in that the learned trial judge did not specifically taken into account the time that he had spent in custody. The same has not been reflected in sentencing."

8. I accept that there is a point sufficient for leave to appeal against the sentence to be granted, but the chances of success are not very high. I am decided to grant leave as these were serious crimes and the appellant was sentenced to 16 years imprisonment.

9. While the chance of success on this is minimal, I will give leave for it to be argued as a second ground of appeal.

10. I refuse leave on all grounds against the conviction.

ORDERS

11. I order as follows:

a) that the Appellant be granted leave to appeal to Court of Appeal against the sentence.

b) that the Appellant's application for leave to appeal against the conviction be dismissed.

Prabaharan Kumararatnam
Justice of Appeal

Dated 02nd of July 2012