Chandar v State [2021] FJCA 257; AAU0019.2020 (31 December 2021)

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

CRIMINAL APPEAL NO.AAU 0019 of 2020

[In the High Court at Suva Case No. HAC 304 of 2018]

BETWEEN:
SEGRAN CHANDAR

Appellant

AND:
STATE

Respondent

Coram: Prematilaka, ARJA

Counsel: Mr. A. K. Singh for the Appellant

: Mr. L. J. Burney for the Respondent

Date of Hearing: 31 December 2021

Date of Ruling: 31 December 2021

RULING

[1] The appellant had been indicted in the High Court at Suva on two counts of rape contrary to section 207 (1) and (2) (c) of the Crimes Act, 2009 and two acts of sexual assault contrary to section 210 (1) (a) and section 210 (1) (b) (i) of the Crimes Act, 2009 committed on 06 and 07 June 2018 at Suva in the Central Division.

[2] The information read as follows:

‘COUNT ONE

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (c) of the Crimes Act 2009.

Particulars of Offence

SEGRAN CHA&> on the the 6^thST&#16h his penis, wis, without his consent.

Statement of Offence

SEXUAL ASSAULT: Contrary to SectiSection 210 (1) (a) of Crimes Act 2009.

Particulars of Offence

SEGRAN&#1ANDAR,&> on the 6 day oday of June 2018, aa, uva, in the Central Division, unlawfully and indecently assaulted ST, by sucking his penis.

COUNT THREE

Statement of Offence

RAPE: Contrary to Section 207 (1 (2) (c) of Crimes Act 2009 2009.

Particulars of Offence

SEGRAN&#16NDAR,&> on the 7 day oday of June 2018, at, uva, in the Central Division, penetrated the mouth o0;ST with his penis, without his consent.

COCOUNT FOUR

Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) (b) (i) of the Crimes Act 2009.

Particulars of Offence

SEGRAN CHANDAR,&on the the 7^th day oe 2018, at Suva, in thin the Central Division, procured ST

[3] At the end of the summing-up, the assessoressors hads had unanimously opined that the appellant wasty of all charges. The learned trial judge had agreed with with the assessors’ opinion, convicted the appellant and sentenced him on 27 February 2020 to sentences of 13 years of imprisonment (before the remand period was deducted) on two rape charges and 06 and 04 years of imprisonment respectively on the second and fourth sexual assault counts; all sentences to run concurrently with a non-parole period of 11 years.

[4] The appellant’s lawyers had appealed against conviction and sentence in a timely manner (23 March 2020) and filed written submissions on 12 November 2021. The state had tendered its wr submissions on 08 Decemberember 2021. Both parties on 09 December 2021 agreed to have a ruling on written submissions alone. The matter was formally fixed for hearing on 31 December 2021.

[5] In terms of section 21(1)(b) and (c) of the Court of Appeal Act, the appellant could appeal against conviction and sentence only with leave of court. The test in a timely appeal for leave to appeal against sentence is ‘reasonable prospect of success’ [see Caucau v State [2018] FJCA 171; AAU0029 of 2016 (04 October 2018), Navuki v State [2018] FJCA 172; AAU0038 of 2016 (04 October 2018) and State v Vakarau [2018] FJCA 173; AAU0052 of 2017 (04 October 2018), Sadrugu v The State [2019] FJCA 87; AAU 0057 of 2015 (06 June 2019) and Waqasaqa v State [2019] FJCA 144; AAU83 of 2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 (15 July 2014) and Naisua v State [2013] FJSC 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds [see Nasila v State [2019] FJCA 84; AAU0004 of 2011 (06 June 2019)].

[6] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] 14; House v The King [1936] HCA 40; ;(1936) 55 CLR 499, Kim Nam Bae v Th v The State Criminal Appeal U0015 and Chirk King Yam v The State Criminalal No.AAU0095 of 20of 2011). The test for leave to appeal i whether the sentence is wrong in law but whether the grounds of appeal against sentence arce are arguable points under the four prins of Kim Nam Nam Bae's case. For a grou appeal peal timely preferred against sentence to be considered arguable there must be a reasonable prospect of its success in appeal. The aforesaid guidelines are as follows

(i) Acted upon a wr a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.

[7] Tpellapellant is not pursuing the original 01^st, 04^th and 06^th grounds of appeal and they are acngly abandoned.

[8] The grounds of appeal urged on behalf of the appellant agat against conviction and sentence are as follows:

‘Conviction:

Ground 2

THAT the Learned Trial Judge erred in law and facts when he failed to allow the defence to tender the victim’s medical report that was part of the agreed facts and thereby denied the defendant a fair trial.

Ground 3

THAT the Learned Trial Judge erred in law and fact when he failed to properly analysis or direct the assessors or himself regarding the law of inconsistent or omission and contradiction of Prosecution witness’s evidence.

Ground 5

THAT the Learned Trial Judge erred in law and facts when he misdirected himself or failed to direct the assessors that he or they should take into consideration the entire or totality of the evidence to decide where the truth lies especially:

1. That on 6^th June 2018, the complainant went to have the lunch after the alleged offence and had time and chances to complain or his behaviour was normal.
2. That there was no direct evidence that appellant threaten the complainant.

100. That on 6^th June 2018, the complainant went home and was found normal by his mother and cousin.

4. That the complainant was in Suva City waiting for the appellant’s wife from 3pm to 6pm on 6^th June 2018 and 7^th June 2018 and had the chance to complain.
5. That the victim’s medical report did not disclose any injuries.
6. That there were inconsistent or contradicting evidence between the complainant and his mother.
7. That there was evidence that the appellant and the complainant went and purchased the complainant’s safety boot and 2 long trousers after the alleged offence.
8. That the independent defence witness DW-3 on various occasion was present in the rooms on both days.
9. That the complainant’s evidence was not only inconsistent with his Police Statement but had omission that went to the root of the offence.
10. That the Learned Trial Judge erred in law and facts when he without any evidence or reason stated that the prosecution witnesses were credible and did not give reason why the appellant’s and his witness’s evidence were not credible before convicting the appellant.
11. That the Learned Trial Judge erred in law and facts regarding early complaint by the complainant.
    

Ground 7

That the Learned Trial Judge erred in law and facts when he without any evidence or reason stated that the prosecution witnesses were credible and did not given reason why the Appellant’s and his witness’s evidence were not credible before convicting the Appellant.

Ground 8

That the Learned Trial Judge erred in law and facts regarding early complaint by the complainant.

Ground 9 (Sentence)

THAT the Learned Trial Judge erred in law when he acted upon a wrong principle; Allowed extraneous or irrelevant matters to guide or affect him; mistook the facts; and failed to consider some relevant consideration.

[9] The trial judge had summarized the prosecution evidence in the judgment as follows:

‘[16] The complainant is now 16 years of age. His date of birth is 16 May 2003. Therefore, during the time of the alleged offences, he would have been 15 years old (These are agreed fact as well).

[17]

8] The complainant testified as to how thew the accused had put his penis into the complainant’s mouth without his consent, on 6 June 2018. He also testified as to how the accused had unlawfully and indecently sucked his penis on the same day.

[19] Further the complainplainant testified as to how the accused had put his penis into the complainant’s mouth without his consent, on 7 June 2018. He also testified as to how the accused had on the same day procured the complainant to commit an act of gross indecency, by getting the complainant to kiss him on his right breast.

[20] Prosecution;#160;witness Mereseini Vuniwaqa, the mother of the complainant, testified as to how the complainant had related to her after returning home on the night of 7 June 2018, the alleged acts which the accused had committed on him, on 6 June and 7 June 2018.

[21]

[10] The appellant’s case had been summarized in the judgment as follows:

‘[22] The accused totally denies all the allegations against him. He admits that he had requested the complainant to assist him with his electrical work on 6 and 7 June 2018.

[23] He admits tn the morning oing of 6 June 2018, he along with his wife, had picked up the complainant from his residence. Thereafter, after dropping his wife at work, he tog with the complainant had gone to the Annandale Apartments.ents. The accused had been working in room 305 that day and the complainant had been assisting him.

[24]

[25] >Afunch he h he and the complainant had returned to the Anna Apartments ents and continued working in room 305. They had finished work around 3.00 in the afternoon. Thereafter, he and the complainant had gone to pick up ccused’s wife from her workplace at Mark Street Suva.Suva.

[26] That day the complainant had been dropped off at his residence at around 7.30 in the evening.

[27] e accused admits tits that e morning of 7 June 2018, he along with his wife, had picked up the complainant from his reis residence. Thereafter, after dropping hfe at work, he together with the complainant had gone to thto the Annandale Apartments. The accused had been working in room 303 before lunch that day and the complainant had been assisting him.

[28] The accused testified that he dropped the complainant at his residence for lunch. Thereafter, he had picked the complainant up at 1.30 and gone back to thendale Apartments.

[29] On reaching par apartment after luer lunch, the Maintenance Supervisor had wanted the accused to check on the ceiling fan in room 306. The accused had checked on the fan and completed the repair. They hadshed work around 3.00 in thin the afternoon. Thereafter, he and the complainant had gone to pick up the accused’s wife from her work place at Mark Street Suva.

[30] That day the complaimplainant had been dropped off at his residence at around 8.00 in the evening.

[31] Malini Rina Roy, the, the wife of the accused testified s behalf. She confirmed havd having gone with the accused to pick up the complainant from his residence in the morning of 6 June 2018the afternoon both the comp complainant and the accused had come to pick her up from her work place. They had dropped off the complainant at his residence later in the evening.

[32] She further tietified that in the morning of 7 June 2018, she and the accused had picked up the complainant from his residence. That afternoon too both the complainant and tcused had come to pick her up from her work place. They hady had dropped off the complainant at his residence around 7.30 in the evening that day.

[33] Avinesh Chahe Maintenance ance Supervisor at Annandale Apartments testified that the accused had come to the Annandale Apartments on 6 and 7 June 2018, to carry out electrical work. On both days, the acchad been accompanied by they the complainant. On 6 June 2018, he had assigned the accused with work in room 305; and on 7 June 2018, he had assigned the accused with work in rooms 303 and 306.

[34] Avinesh Chand testified that on both days he had come to check on the work being carried out by the accused in rooms 305 and 303. He also testified that on 7 June 2018, whilst the accused was checking on the fan in room 306, he had remained in the room throughout the said period.

02^nd ground of appeal

[11] It cannot be ascertained at this stage under what circumstances the trial judge had disallowed the complainant’s medical report if indeed it had been refused. Firstly, it appears that the appellant was defended by a counsel and he could have got the said medical report admitted as an agreed fact in the same manner both parties had agreed on the photographs of room 305 at Annandale Apartment in as much as parties had agreed that the complainant had been medically examined on 08 June

[12] S12] Secondly, there is nothing to indicate that the complainant had suffered any injuries as a result of acts of sexual abuse allegedly performed by the appellant. Therefthe medical report would nold not have revealed any new material even if produced. Thirdly, medical evidence does not play a pivotal role in sexual abuse cases in Fiji any longer. Fourthly, the trial counsel could have summoned the doctor and gotten him to produce the medical report if he considered it be so crucial to the appellant’s defense.

[13] This ground of appeal has no reasonable prospect of success.

03^rd ground of appeal

[14] On a perusal of the summing-up, I do not find much weight in this ground of appeal. The trial judge had addressed the assessors on how to approach contradictions, inconsistencies and omission in paragraphs 20, 21, 95 and 96. He had highlighted some of them in paragraphs [82](xxxv) and 95.

[15] Are the alleged omissions, inconsistences or improbabilities in the prosecution evidence pointed out by the appellant so material as to affect the credibility of the complainant. The test for the evaluation of any alleged improbabilities, omissions, contradictions and inconsistences is whether they go to the root of the prosecution case as to discredit the complainant [see Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] AIR 753, 1983 SCR (3) 280, [2015] FJCA 130; AAU0080.2011 (2 October 2015) and Turogo v State [2016] FJCA 117. Is case, none of the contradictions, inconsistencies and omission appears to be of such magn magnitude as to shake the foundation of the prosecution case.

[16] This ground of appeal has no reasonable prospect of success.

05^th ground of appeal

[17] All matters of evidence mentioned under this ground of appeal are purely trial issues and should have been canvassed at the trial. Some of them overlap or are aligned with the 03^rd ground of appeal. Most importantly, in direct contrast to the gist of the appellant’s complaint, the trial judge had specifically directed the assessors as follows:

‘[91] In assessing the evidence the totality of the evidence should be taken into account as a whole to determine where the truth lies.’

[18] This ground of appeal hareasonable prospect of success.

07th ground of appeal

[19] What could be identified as common ground arising from several past judicial pronouncements is that when the trial judge agrees with the majority of assessors, the law does not require the judge to spell out his reasons for agreeing with the assessors in his judgment but it is advisable for the trial judge to always follow the sound and best practice of briefly setting out evidence and reasons for his agreement with the assessors in a concise judgment as it would be of great assistance to the appellate courts to understand that the trial judge had given his mind to the fact that the verdict of court was supported by the evidence and was not perverse so that the trial judge’s agreement with the assessors’ opinion is not viewed as a mere rubber stamp of the latter [vide Mohammed& v Stat State [2014] FJSC 2; CAV02.2013 (27 February 2014), Kaiyum v < [2014] FJCA 35; AAU0071.2012 (1ch 20#160;Chandra v ;State& < [2015] FJSC 32; CAV21.2015 (10 December 2015) and Kumarate&#160 ef="h/www.pacli/forg/fj/casj/casj/cases/FJCA/2018/136.html?stem=&synonyms=&query=Fraser" title="View Case">[2018] FJCA 136; AAU103.201 Augu18) and Fraser v Sta> [2021[2021] FJCA FJCA 185; AAU128.2014 (5 May 20ay 2021)].

[20] A trial judge is not expected to repeat everything he had stated in the summing-up in the judgment (even when he disagrees with the majority of assessors) as long as he had directed himself on the lines of his summing-up to the assessors. Then the summing-up becomes part and parcel of the judgment [vide Fraser v State [2021] FJCA 185; AAU128.2014 (5 May 2021)]. In Fiji, the assessors are not the sole judge of facts. The judge is the sole judge of fact in respect of guilt, and the assessors are there only to offer their opinions, based on their views of the facts and it is the judge who ultimately decides whether the accused is guilty or not [vide Rokonabete ;v State [2006] FJCA 85; AAU0048.2005S (22 March 2006), Noa Maya e State< [2015] FJSC 30; CAV 009 of 2015 (23 October 2015] and&#160u>Rokopeta v Stat&[2016] FJSC 33; CAV0009, 0016, 0018, 0019.(26 August 2016)].

[21] Having examined the jude judgment, I am of the view that the trial judge had complied with his statutory function in agreeing with the assessors. When the judge agreed with the assessors that prosecution evidence was truthful and reliable he had by necessary implication rejected the defence evidence. He made it clear as follows in the judgment.

‘[35] Tsessors have found thnd the evidence of the prosecution as truthful and reliable as they have by their unanimous decision found the accused guilty of all the charges. Therefore, it is clear that they have rejected the position taken up by the defence.

[36] Iniew, the Asse Assessor's opinion was justified. It was open for them to reach such a conclusion on the available evidence. I concur with the unanimous opinion of the Assessors in respect of alr counts.

b>[37] Considering the nature of all the evidence before this Court, it is my considered opinion that the prosecution has proved its case beyond reasonable doubt by adducing truthful and reliable evidence satisfyin elements of the offences oces of Rape (Counts 1 and 3) and Sexual Assault (Counts 2 and 4) with which the accused is charged.’

[22] The trial judge was entitled to say what he had said above particularly in the light of his following directions to the assessors.

‘[104] In ry and before I concludnclude my summing up let me repeat some important points in following form:

1. If you neither believe nor disbelieve the evidence of the defence, then again you must find the accused not guilty of the charges;
3. If you reject the version of the defence, then you must proceed to consider whether there is truthful and reliable evidence placed before you by the prosecution;
4. If you find the prosecution evidence is not truthful and or not reliable then you must find the accused not guilty of the charges;
5. If you find the prosecution evidence is both truthful and reliable then only you must consider; whether the elements of the charges of rape and sexual assault have been established beyond reasonable doubt. If so you must find the accused guilty. If not you must find the accused not guilty.’
   

[23] This ground of appeal has no reasonable prospect of success.

[24] In any event, the appellant’s trial counsel had not sought redirectionsin resp respect of some of the complaints now being made on the summing-up as strongly commented upon in Tuwai v Sta>&#160 [2016] FJSC6 August 2and&#1nd Alfaaz v State [160;[2018] FJCA19; AAU0032 of 2014 (08 March 2018) and #160; [2019] FJCA 144; AAU83.2015 (12 July 20

08th ground of appeal <

[26] The appellant seems to complain about the directions on recent complaint evidence.

[27] I have examined the summing-up and the judgment and find that the trial judge’s directions in paragraphs 17-19 of the summing-up and his own conclusion in paragraph 21 of the judgment on recent complaint evidence of the complainant’s mother cannot be reasonably criticized.

[28] This ground of appeal has no reasonable prospect of success.

09^th ground of appeal (sentence)

[29] In Aitcheson v Sta>& [2018] FJSC 29; CAV0012.2018 (2 November 2018) sentencing tariff for juvenile rapeenhanced and fixed between ween 11 to 20 years.

‘[25] The tariff previously set in Raj v The State [2014] FJSC 12 CAV2014 (20^th&#1p> Augus4) shou should now be w be between 11-20 years imprisonment. Much will depend upon the aggravating and mitigating circumstances, considerations of remorse, early pleas, and finally time spent mand awaiting trial for ther the final sentence outcome. The increased tariff represents the denunciation of the courts in the strongest terms.’

[30] I have examined the appellant’s grievances on the sentence imposed but do not find any sentencing errors in them which are capable of attracting the intervention of this court.

[31] It is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered (vide e [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determiningining whether the sentencing discretion hacarried the appellate courtcourts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range (Sharma v State [2015] FJCA 17; AAU48.2011 (3 December 2015).

[32] 13 years of imprisonment lies well withinithin the sentencing tariff of Aitcheson v State (supra sits at the lower ener end. If renewed before the full court, it would be interested to revisit the sentence given the range of sentences being imposed on similar cases.

[33] There is no reasonable prospect of success in this ground of appeal.

Orders

1. Leave to appeal against conviction is refused.
2. Leave to appeal against sentence is refused.
   

Hon. Mr. Justice C. Prematilaka

ACTING RESIDENT JUSTICE OF APPEAL