Khan v State [2015] FJCA 85; AAU0013.2013 (15 June 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CRIMINAL APPEAL NO.AAU 0113 OF 2013
[High Court Criminal Case No. HAC 067 of 2009]

BETWEEN :

FAIYAZ KHAN
Appellant

AND:

THE STATE
Respondent

Coram : Hon. Mr. Justice Daniel Goundar
Counsel : Mr. K. Tunidau for the Appellant
Mr. L. J. Burney for the Respondent

Date of Hearing : 14 January 2015
Date of Ruling : 15 June 2015

RULING

[1] This is a timely application for leave to appeal against conviction and sentence.

[2] Following a trial in the High Court, the appellant was sentenced to a total term of 5 years' imprisonment for the following offences:

Count 1- Uttering forged document

Count 2 – Obtaining money on forged document

Count 3 – Money Laundering

Count 4 – Money Laundering

Count 5 – Money Laundering

[3] The appellant seeks leave to appeal against conviction and sentence on the following grounds:

1. The Trial judge erred in law and in fact when he failed to direct the assessors at paragraph 63 of the summing up as to:

1. What constitutes a 'reasonable man';
2. What was the test for a 'reasonable man';

100. What evidence that shows that the appellant had satisfied ("passed") or not the 'reasonable man' test; and

4. Whether the 'reasonable man' test should be confined only to the mens rear or intention element of each offence against the appellant.
   

2. That by failing to direct the assessors on the issues raised at Ground 1 (a), (b), (c) and (d) the Trial Judge erred in law and in fact in directing the assessors, at paragraph 65 of the summing up, to infer whether the appellant had 'known' of the cheque as a forged cheque on the face of it.

3. That the Trial judge erred in law and in fact when he failed adequately to direct the assessors and himself to consider his direction at paragraph 65 of the summing up against:

1. Answers 71 and 109 of the appellant's caution interview statement dated 13/9/08.
   
2. The fact that the appellant was not asked any direct question in his caution interview statement dated 13/9/08 on whether the appellant knew that the cheque given to him by Salendra Sen Sinha was forged; and
   

100. Any likelihood and degree of vulnerability of the appellant, in all circumstances, to the cunningness and deceit of Salendra Sen Sinha, a convicted conman and fraudster.
     

4. That the Trial Judge erred in law and in fact when he failed adequately to direct himself or the assessors, on the admission of prosecution witnesses namely Detective Constable Simione Vadugu and Mrs Dulari Doras, summarized at paragraphs 44 and 56 of the summing up:-

1. That Salendra Sen Sinha, a conman, had pleaded guilty before the Lautoka High Court to the offences of forgery, uttering forged documents and causing payment of funds by virtue of a forged document involving the amount of $186,561.65, the same forged document and amount referred to in counts 1 and 2 of the offences against the appellant.
   
2. That Salendra Sen Sinha, had stolen several Fiji Island Revenue and Customs Authority (FIRCA) cheques including that which was the subject of counts 1 and 2 of the offences against the appellant.
   

100. That Salendra Sen Sinha, was sentenced to 4 years imprisonment.
     

5. The Trial Judge erred in law and in fact when he failed adequately to direct himself or the assessors that the prosecution ought to have called Salendra Sen Sinha, a convicted conman and thief and as a result the appellant did not have a fair trial.

6. The Trial Judge erred in law and in fact when he failed adequately to direct the assessors to banish from their minds any prejudice they had against the appellant due to the conviction and sentence of Salendra Sen Sinha, a convicted conman and thief and as a result there was a substantial miscarriage of justice.

7. That the appellant appeals against sentence as being manifestly harsh and excessive and wrong in principle in all the circumstances of the case.

8. The Trial Judge erred in law and in fact in taking irrelevant matters into consideration when sentencing the appellant.

[4] Counsel for the State, Mr. Burney has filed helpful submissions. The State concedes that the first two grounds against conviction are arguable. The State says the remaining grounds have no substance.

[5] In my judgment, the State's concession is fair. Since the appeal will be heard by the Full Court, and to avoid renewal of application for leave on the grounds which the State submits have no substance, I have decided to grant the appellant leave to appeal against conviction and sentence on all grounds.

[6] It is a matter for the appellant to decide whether he wants to proceed on the grounds which the State says have no substance.

Result
Leave to appeal against conviction and sentence granted.

.......................................
Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Mr. K. Tunidau for the Appellant
Office of the Director of Public Prosecutions for State