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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 073 of 2018
[In the High Court at Suva Case No. HAC 383 of 2016S]
BETWEEN:
SANJAY LAL
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, JA
Counsel: Mr. S. P. Gosaiy for the Appellant
Mr. Y. Prasad for the Respondent
Date of Hearing: 19 February 2021
Date of Ruling : 01 March 2021
RULING
[1] The appellant had been indicted in the High Court of Suva with 03 others (the 01st to 03rd accused and the appellants in AAU 076 of 2018) as the 04th accused on one count of rape [sections 207(1) & (2) (a) of the Crimes Act, 2009] and one count of assault with intent to commit rape (section 209 of the Crimes Act, 2009) relating to one of the two complainants (O.R.) committed at Waimaro, Tailevu in the Eastern Division.
[2] The information read as follows.
COUNT FOUR
Statement of Offence
RAPE: Contrary to Sec2ion 207 (1) and (2)(a) of the Crimes Act 2009.
Particulars of Offence
and SANJAYbeAL between  the 9up> day of O of October, 2016 and the 10th day of Oct 2016 at Waimaro
COUNT FUNT FIVE
Statement of Offence
Particulars of Offence
SANJAY LAL between the >th
th day of er, 2016 ae 10tsup>th th
[3] The trialtrial judge had summarized the prosecution evidas follows in the sentence ence order.
2. The brief facts of the case were as follow. On 9 October 2016, the four of you were travelling in a rental car registration number IQ 893, driven by Accused no. 4, around Nausori Town. You met the two complainants (PW1 and PW2) in front of Deoji shop at about 9 pm, and invited them into the car. All of you then went for a joy ride around Nausori Town, then to Waidalice, then to Korovou Town, and to the secluded spot at Waimaro, Tailevu. Accused no. 4 was driving the car. Accused no. 1 was the front seat passenger. Accused no. 2 was sitting behind the driver in the back seat, while Accused no. 3 was sitting behind the front seat passenger, and PW1 and PW2 were sitting between Accused no. 2 and Accused 3, in the back seat.
[4] The appellant had given evidence at the trial and denied penetration of PW2’s vagina with his penis but admitted slapping her mouth and said that PW2 sucked his penis at the material time.
[5] At the end of the summing-up on 13 July 2018 the assessors had unanimously opined that the appellant was not guilty of both charges levelled against him. The learned trial judge had disagreed with the unanimous opinion of the assessors in his judgment delivered on 16 July 2018, convicted the appellant of both charges and sentenced him on 20 July 2018 as follows.
(iv) Count No.4: Rape: Accused No. 4 – 8 years imprisonment
(v) Count No.5: Assault with intent to commit rape – Accused No.4 – 12 months imprisonment
[6] The appellant’s timely notice and grounds of appeal against conviction had been filed by his solicitors on 13 August 2018. His written submissions had been tendered on 07 July 2020 by the same solicitors. The state had tendered its written submissions on 25 November 2020.
[7] In terms of section 21(1) (b) of the Court of Appeal Act, the appellant could appeal against conviction only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (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 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.
[8] Grounds of appeal urged on behalf of the appellants are as follows.
THAT the Learned Trial Judge erred in law and in fact by overturning the unanimous not guilty verdict of all three assessors and find the appellant guilty on both charges laid against him.
Ground 2
THAT the Learned Trial Judge erred in law and in fact when the conviction against the Appellant, taken as a whole, was unsafe and untenable given that the evidence adduced did not prove beyond reasonable doubt the guilt of the Appellant in respect of both counts.
Ground 3
THAT the Learned Trial Judge erred in law and in fact in convicting the Appellant on the charge of rape when there were so many contradictions and discrepancies in the testimony of the second complainant and the evidence of the second complainant was not credible against the appellant.
Ground 4
THAT the Learned Trial Judge erred in law and in fact in convicting the Appellant on the charge of Assault with intent to Rape when no evidence at all was adduced to the effect that the Appellant assaulted the second complainant in order to rape the said complainant.
Ground 5
THAT the Learned Trial Judge erred in law and in fact when he failed to appropriately observe the demeanor of the second complainant who testified against the appellant in that she was very evasive in her answers and was not cooperating throughout the trial.
Ground 6
THAT the Learned Trial Judge erred in law and in fact when he failed to consider the fact that the second complainant told the Police Officer who wrote her medical report that there was an attempt on her to be raped as against her testimony in court that she was actually raped.
Ground 7
THAT the Learned Trial Judge erred in law and in fact when he failed to consider the fact that the second complainant told the Medical Officer who examined her that there was an attempt on her to be raped as against her evidence in court that she was actually raped.
Ground 8
THAT the Learned Trial Judge erred in law and in fact when he failed to consider the fact that the complainant completely changed her story to being raped in contradiction to the narration given to the Police Officer and the Medical Officer.
Ground 9
THAT the Learned Trial Judge erred in law and in fact when he failed to believe the testimony of the appellant who was very forthright in his answers compared to that of the second complainant.
Ground 10
THAT the Learned Trial Judge erred in law and in fact in not finding the accused evidence credible but did not give reasons for his findings.
Ground 11
THAT the Learned Trial Judge erred in law and in fact when he kept saying that whatever he writes forms part of the evidence rather than recording everything that was said thus prejudicing the Appellant’s case.
01st ground of appeal
[9] The appellant relies on Johnson v State [2013] FJCA 45; AAU90 of 2010 (30 May 2013) to buttress his argument that the trial judge had failed to give cogent reasons in overturning the assessors’ opinion. I had embarked on an analysis of this aspect before in Manan v State [2020] FJCA 157; AAU0110.2017 (3 September 2020), Waininima v State [2020] FJCA 159; AAU0142 of 2017 (10 September 2020), State v Mow [2020] FJCA 199; AAU0024.2018 (12 October 2020) and a few other rulings. I concluded inter alia as follows.
‘There still appears to be some gray areas flowing from the past judicial pronouncements as to what exactly the trial judge’s scope of duty is when he agrees as well as disagrees with the majority of assessors.’
‘When the trial judge disagrees with the majority of assessors the trial judge should embark on an independent assessment and evaluation of the evidence and must give ‘cogent reasons’ founded on the weight of the evidence reflecting the judge’s views as to the credibility of witnesses for differing from the opinion of the assessors and the reasons must be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial [vide Lautabui v State [2009] FJSC 7; CAV0024.2008 (6 February 2009), Ram v State [2012] FJSC 12; CAV0001.2011 (9 May 2012), Chandra 㼠 State> [2FJSC AV21.2015.2015 (10 D(10 December 2015), Baleilevuka v State [2019] FJCA 209; AAU58.2015 (3 October and >Singtate [2020] FJSC 1; CAV 0027 of27 of 2018 (27 February 2020)]’<
‘In my view, in both situations, a judgment of a trial judge cannot not be considered in isolation without necessarily looking at the summing-up, for in terms of section 237(5) of the Criminal Procedure Act, 2009 the summing-up and the decision of the court made in writing under section 237(3), should collectively be referred to as the judgment of court. A trial judge therefore, is not expected to repeat everything he had stated in the summing-up in his written decision (which alone is rather unhelpfully referred to as the judgment in common use) 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, for it could reasonable be assumed that in the summing-up there is almost always some degree of assessment and evaluation of evidence by the trial judge or some assistance in that regard to the assessors by the trial judge.’
‘This stance is consistent with the position of the trial judge at a trial with assessors i.e. 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#160; [2006] FJCA 85; AAU0048.2005S (22 March 2006), Noa Maya v. The State
[10] LaLautabui v State [2009] FJSC 7; CAV0024.2008 (6 February 2009) the Supreme Courmined the trial judge’s duty in disagreeing with the assessors and stated as follows.lows.
‘[34] In order to give a judgment containing cogent reasons for disagreeing with the assessors, the judge must therefore do more than state his or her conclusions. At the least, in a case where the accused have given evidence, the reasons must explain why the judge has rejected their evidence on the critical factual issues. The explanation must record findings on the critical factual issues and analyse the evidence supporting those findings and justifying rejection of the accused’s account of the relevant events. As the Court of Appeal observed in the present case, the analysis need not be elaborate. Indeed, depending on the nature of the case, it may be short. But the reasons must disclose the key elements in the evidence that led the judge to conclude that the prosecution had established beyond reasonable doubt all the elements of the offence.’
[11] In Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020) where the trial judge had overturned the unanimous opinion of ‘not guilty’ by the assessors, the Supreme Court reiterated that
‘[24] It is always necessary to bear in mind that the function of this Court, as well as the Court of Appeal, in evaluating
the entirety of the evidence led at the trial and making an independent assessment thereof, is of a supervisory nature. .................In
other words, apart from the non-directions and mis-directions adverted to already, the learned trial judge has also fallen into error
in the effective discharge of his duty of independently evaluating and assessing the evidence led in the High Court in the course
of his judgment.
[25] I am therefore of the opinion that the Court of Appeal has in all the circumstances of this case, failed to discharge its supervisory
function of considering carefully whether the trial judge had adequately complied with his statutory duty imposed by section 237(4)
of the Criminal Procedure Decree. Though an appellate court such as the Court of Appeal and this Court does not have the advantage
of seeing the witnesses testify so as to appreciate their demeanour, it is evident on the available evidence that the trial judge
had failed to effective discharge his statutory duty of evaluation and independent assessment of the evidence when differing with
the unanimous opinion of the assessors that the petitioner is not guilty of murder, and the Court of Appeal erred in affirming the
said decision.’
[12] The trial judge had stated in the judgment that
‘6. ............... On my analysis of the case based on the evidence, and on my assessment of the credibility of the witnesses, I am bound to disagree with the unanimous guilty opinion of the three assessors.’
‘7. .........During the trial, I have carefully listened to their evidence, carefully analysed them and generally observed their demeanour. In addition to the above, I had observed how they answered defence counsel’s cross-examining questions, in an attempt to determine their credibility.’
[13] Unfortunately, the said analysis or assessment of evidence is not sufficiently reflected in the judgment. Therefore, viewed in the light of the past decisions cited above, I am of the view that the learned trial judge does not seem to have undertaken an independent assessment and evaluation of the evidence. The trial judge’s mere statements that he accepted the prosecution evidence, particularly that of the two complainants in all respects and found them to be credible, do not satisfy or measure up to the requirements laid down by previous judicial pronouncements as to the ‘cogent reasons’ founded on the weight of such evidence reflecting on the credibility of the complainants (and the appellant who had given evidence) on the contested issues at the trial in differing from the opinion of the assessors.
[14] It may be argued that the reasons could be readily inferred from the summing-up and the judgment and the trial judge cannot anyway give reasons why he is disagreeing with the assessors as their reasons are not known and all what the trial judge could do is to provide his own independent reasons for concluding that he is either sure or not sue of guilt of the appellant. However, what section 237(4) of the criminal Procedure Act, 2009 requires the trial judge to do is to give reasons why he is disagreeing with the opinion of the assessors; not their reasons. In any event, in my view, the trial judge had not given adequate reasons of his own for the overturning the assessors’ opinion.
[15] When the assessors had expressed their opinion inter alia considering the directions given by the trial judge that the appellants were not guilty of all counts and when the judge himself had said in his judgment that their opinion was not perverse and it was open for them to come to their conclusion on evidence, in my view it was incumbent upon the trial judge to have thoroughly analyzed and evaluated both versions independently and set down his own reasons why he was deciding that the appellants were guilty. The judgment should be weightier, go deeper and beyond what the judge had stated in the summing-up. The trial judge had unfortunately failed to do that.
[16] In Johnson (supra) the state had not disputed that a failure to comply with the statutory requirement, whether because the reasons are inadequate or because they are not pronounced in open court, is sufficient, of itself, to warrant setting aside a conviction in a case where the judge overrides the opinion of the assessors. However, it can be argued that the consequence of failure to give ‘cogent’ reasons would not necessarily guarantee success for the appellant in appeal, for this court can adequately discharge its appellant function independent of the said failure on the part of the trial judge. The argument goes further to state that section 237(4) is silent on the consequence of failure to adhere to the section by the trial judge i.e. to give reasons in differing with the assessors and that while such a failure may constitute an error of law it does not follow that such failure would necessarily amount to a miscarriage of justice or for that matter a substantial miscarriage of justice. In other words, lack of cogent reasons alone cannot found a successful appeal unless there has been a miscarriage of justice. There seems to be some merits in this argument.
[17] In other words, the argument goes to state that irrespective of whether the trial judge had failed to give cogent reasons in the judgment in disagreeing with the assessors, still the Court of Appeal could independently assess evidence to determine whether there is any ground enumerated in section 23 Court of Appeal Act upon which the verdict should be set aside and if not, the verdict would not be disturbed. The appellate function is prescribed by section 23 of the Court of Appeal Act.
[18] While it can be argued that it is open for this court to do that, this task should be undertaken by the full court after considering all the evidence led in the case. Further, this proposition of law advanced by the state at the leave to appeal hearing in Raj v State [2020] FJCA 254; AAU008.2018 (16 December 2020) seems to formulate a new test when a guilty verdict is challenged on the basis that the trial judge had failed to give cogent reasons for overturning the assessors’ opinion. To that extent, it poses an important question of law which needs to be addressed by the full court.
[19] Therefore, at the leave to appeal stage a credible and sustainable complaint based on the failure on the part of the trial judge to give cogent reason to overturn the assessors’ opinion is sufficient to allow leave to appeal to the full court for it to embark on the appellate function within the purview of section 23 of the Court of Appeal Act.
[20] Therefore, I am inclined to allow leave to appeal to the Court of Appeal on this question of mixed law and fact raised by the appellant and the question of law raised by the state in Raj (supra) on the legal consequences of an apparent failure on the part of the trial judge to give cogent reasons.
[21] However, I make no decision and am not in a position to make any judgment as to whether there is a reasonable prospect of success in appeal as far as the appellant is concerned as it is a matter only the full court with the benefit of the trial proceedings could decide.
02nd ground of appeal
[22] This is intrinsically interwoven and can be dealt with the first ground of appeal because it involves examining the evidence by the full court. In Sahib v State [1992] FJCA 24; AAU0018u.87s (27 November 1992) the Court of Appeal stated as to what approach the appellate court should take when it considers whether verdict is unreasonable or cannot be supported by evidence under section 23(1)(a) of the Court of Appeal Act.
‘..............Having considehe evidence against this appellant as a whole, we cannot say the verdict was unreasonable. ble. There was clearly evidence on which the verdict could be based....... Neither can we, after reviewing the various discrepancies between the evidence of the prosecution eyewitnesses, the medical evidence, the written statements of the appellant and his and his brother's evidence, consider that there was a miscarriage of justice.’
[23] A more elaborate discussion on this aspect can be found in Rayawa v State [2020] FJCA 211; AAU0021.2018 (3 November 2020) and Turagaloaloa v State [2020] FJCA 212; AAU0027.2018 (3 November 2020).
[24] In Kaiyum v State [2013] FJCA 146; AAU71 of 2012 (14 March 2013) the Court of Appeal had said that when a verdict tested on the basis that it is unreasonable the test is whether the trial judge could have reasonably convicted on the evidence before him (see Singh v State [2020] FJCA 1; CAV0027 of 2018 (27 February 2020)].
03rd and 05th grounds of appeal
[25] These are grounds which could be usefully considered only with the benefit of the court proceedings by the full court which will be part of the exercise to be undertaken at the appeal hearing under the main ground of appeal. In doing so, the following cases may provide guidance in evaluating any inconsistencies, omissions and contradictions. In this case, the only such instance cited by the appellant in the written submissions is the PW2’s version to the doctor and the police officer being different to her testimony in court without showing what those different versions are.
[26] The applicable test in assessing the contradictions, inconsistencies and omissions was laid down in the case of Nadim v State [2015] FJCA 130; AAU0080.2011 (2 October 2015) as follows.
‘[13] Generally speaking, I see no reason as to why similar principles of law and guidelines should not be adopted in respect of omissions as well. Because, be they inconsistencies or omissions both go to the credibility of the witnesses (see v O’Neill> [1Crim. L. R. 260). But, tht, the weight to be attached to any inconsistency or omission depends on the facts and circumstances of each case. No hard and fast rule could be laid down in that regThe broad guideline is that that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance (see Bharwadginbhai Hirjibhaiibhai v State of Gujarat [1983] AIR 753, 1983 SC 280)7;
[27] Turogo v State [2016] FJCA 117; AAU.0008.2013 (313 (30 September 2016) the Court of Appeal further stated:
‘[35]...........Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all-important "probabilities-factor" echoes in favour of the version narrated by the witnesses. The reasons are: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen; (2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details; (3) The powers of observation differ from person to person. What one may notice, another may not. ...... It is unrealistic to expect a witness to be a human tape recorder;”
[28] The Court of Appeal followed the above decisions in Chand v State [2019] FJCA 192; AAU0033.2015 (3 October 2019). It is, of course, a paramount duty of the trial judge to direct and guide the assessors on how to act on the inconsistencies or contradictions or omissions (vide Prasad v State [ 2017] FJCA 112; AAU105 of 2013 (14 September 2017).
[29] The appellant has not satisfied this court in written submissions at this stage that this ground of appeal has a reasonable prospect of success.
04th ground of appeal
[30] The trial judge has addressed the assessors at paragraph 43 and 44 on the available evidence regarding the 05th charge against the appellant. At paragraph 12 of the judgment the trial judge had accepted PW2’s evidence on the 05th charge. The appellant had admitted in his evidence that he slapped PW2 on the mouth to stop her shouting (see paragraph 26 of the summing-up).
[31] In the circumstances, I do not see any reasonable prospect of success of this ground of appeal.
06th, 07th and 08th grounds of appeal
[32] I cannot examine these grounds of appeal for want of trial proceedings as to what PW2 had told the police officer, the doctor and what she had testified at the trial. The appellant alleges that PW2 had complained of only an attempt to rape in her previous statements whereas in her testimony in court she had alleged to have been raped by the appellant. The state argues that it did not rely on her previous statements to prove its case.
[33] The Court of Appeal in Goundar v State [2020] FJCA 4; AAU29.2015 (27 February 2020) examined a similar complaint of hearsay evidence being led of what the victim had told the doctor in the light of Delailagi v State [2019] FJCA 186Subramaniam v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965 a and >Navaki v State [2019] FJCA 194; AAU0087.2015 (03 October 2019) stated:
‘[32] The history recorded by the medical doctor on enquiring the complainant-victim soon after the incident offers, from an evidential perspective, only consistency to the complainant’s story and nothing more. I am, therefore, of the view that, the reference to the history in the evidence by the doctor, could not have caused the case to miscarry resulting in prejudice to the appellant on the basis of a purported admission of he evidence.
[34] However, the defense was entitled to impeach the credibility of PW2 based on such previous statements if there was no explanation as to why PW2 had only spoken to an attempt to rape earlier when she was confronted with them by the defense. The trial judge does not seem to have brought these matters to the notice of the assessors or more importantly directed himself in the judgment.
[35] I think it is worth looking at this complaint more deeply by the full court and it could be done as part of the consideration of the main ground of appeal. If the basis of the appeal grounds 03rd and 05th is the same as being urged under these grounds of appeal then all of them could be considered by the full court under the main ground of appeal.
09th and 10th grounds of appeal
[36] The gist of the complaints under these two grounds of appeal is also interlinked with the main ground of appeal. The appellant complains that the trial judge had not given reasons as to why he had disbelieved his testimony in court.
[37] However, at this stage the evidence of the appellant is not available to me to be examined to understand how he had performed under cross-examination. Therefore, it is for the full court to examine these complaints under the main ground of appeal once the trial proceedings are available.
11th ground of appeal
[38] This appeal ground cannot be examined at all without the trial proceedings and leave to appeal is therefore refused.
Order
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
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