Khan v State [2022] FJCA 24; AAU004.2017 (3 March 2022)

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

CRIMINAL APPEAL NO.AAU 004 of 2017

[In the High Court at Lautoka Criminal Case No. HAC 21 of 2013]

BETWEEN:
MOHAMMED ZAHID KHAN

Appellant

AND:
STATE

Respondent

Coram: Gamalath, JA
: Prematilaka, JA
: Bandara, JA

Counsel: Mr. M. Fesaitu and Ms. L. Volau for the Appellant

: Mr. R. Kumar for the Respondent

Date of Hearing: 24 February 2022

Date of Judgment: 03 March 2022

JUDGMENT

Gamalath, JA

[1] I have read the judgment of Prematilaka, JA in draft and I agree with his conclusion.

Prematilaka, JA

[2] The appellant had been charged in the High Court at Lautoka on a single count of rape contrary to section 207(1) and (2)(a) of the Crimes Act, 2009 committed at Ba on 26 January 2013 in the Western Division.

[3] After trial, the assessors had expressed a unanimous opinion of guilty against the appellant. The learned High Court judge had agreed with the assessors, convicted him and sentenced the appellant on 25 November 2016 to imprisonment of 10 years with a non-parole period of 07 years.

[4] Although the appellant filed a timely appeal against conviction and sentence, his lawyers had tendered amended grounds of appeal only against conviction. The appellant had appeared in person at the leave to appeal hearing pursuing those 05 grounds of appeal against conviction. The single judge had refused leave to appeal against conviction and the appellant in person had renewed the same grounds of appeal before the full court.

Summary of facts

[5] The prosecution alleged that the appellant had forcible sexual intercourse with the complainant on the 26 January 2013. He was the step father of the victim. According to the complainant, on that morning around 5.45 am, having unusually locked the front door the appellant had asked the appellant to come and scratch his back which she did. Then he wanted her to stand on his back which too she did; both being normal things her siblings used to do at his request. When she got off him, he had stood in front of her and started to kiss her despite her protests. When she shouted twice he had threatened her in Hindi ‘if you shout, you will see what happens’. She got scared. At that time she was wearing her night dress and the appellant had then dragged her to the bed, took off her panty and put his penis in her vagina for about 05 minutes. When this happened she was alone at home as her mother and other siblings had gone to the flea market. She had called her partner or boyfriend, Zuhaad Hassan immediately and informed him of what happened. Zuhaad had made a prompt complaint to the police.

[6] She had been cross-examined on the basis that she and her boyfriend had conspired to concoct the allegation against the appellant to take revenge. The complainant had readily admitted that in August 2012 when the appellant had gone to the mosque her boyfriend had come home and was hiding under the bed when the appellant came home where he had dragged Zuhaad out and assaulted him in her presence. The revenge alleged by the appellant was regarding this incident. She also admitted that she was taken to hospital over a serious medical condition i.e. ovarian cyst but not told by the doctors that it was the result of an abortion done earlier.

[7] In his evidence Zuhaad had confirmed that the complainant had told him over the phone around 7.00 a.m. that the appellant had forced her to sleep with him. She had also told him that she was feeling like killing herself and could not show her face to anyone. He had called the appellant’s mother and told her what he learnt and reported the matter to police on his way to meet the complainant. He too without hesitation had admitted under cross-examination the incident where he was assaulted by the appellant and that the complainant got pregnant by him. He also admitted that there was an abortion done on her but said that she was admitted to Lautoka hospital after about a year since the abortion. However, he rejected the suggestion that he and the complainant had fabricated the alleged incident.

[8] While giving evidence at the trial the appellant had denied the rape allegation against him and spoken to the incident where he assaulted Zuhaad and also said that the complainant became very sick in 2012, and admitted to hospital and underwent a surgery. According to him, the complainant’s abortion took place in 2011. He also alleged that Zuhaad was avoiding marriage to the complainant despite his requests several times. However, Zuhaad stated in his evidence he and the complainants were going to get married at the end that year. Strangely, the appellant never came out with the allegation that the complainant and her boyfriend had conspired to implicate him in a concocted act of rape. He had also not explained as to why the complainant had not previously made this allegation despite him and her having spent time alone at home even in the night many a time before. Further, he had offered no reason why the complainant and Zuhaad had waited till January 2013 to take revenge for his assault on Zuhaad in August 2012 if that was the motive. The appellant claimed to have opposed the affair for a long time but why the complainant and Zuhaad had selected this moment to make this ‘false’ allegation is also not explained.

[9] The appellant’s renewed grounds of appeal are as follows:

‘1. THAT the complainant of the first prosecution witness was adduced through skype though there was no proper hearing calling on an expert to give a report on whether or not the manner of her giving evidence was going affect the content of her evidence if she faced the appellant.

2. THAT the complainant did not fit into the category of vulnerable witness as she was an adult and that the Learned Trial Judge by granting the exemption from her facing the Appellant was a miscarriage of justice.
   
3. THAT the Learned Trial Judge erred in law and in fact when he failed to direct himself and/or direct the assessors on certain facts which would have pointed to the credibility of the Appellant.
   
4. THAT in paragraph 9 & 10 of the judgment, the Learned Judge in stating that the medical report has no significant findings was wrong as the doctor was the first independent person that the complainant came into contact with who noted the inconsistency of the history given by the victim and the findings of the clinical examination.
   
5. THAT the court could have directed on the failure of the prosecution to call the uncle and the mother of the complainant who also turned up at the place of the alleged incident for they would have been the ones to attest to the demeanour of the victim after the incident as they were the first to see the complainant after the appellant is said to have occurred.’
   

01^st and 02^nd grounds of appeal

[10] Under these two grounds of appeal the appellant complains that taking of the evidence of complainant via skype had been done without a proper hearing and she was not a vulnerable witness but an adult and therefore the exemption granted to the witness in facing the appellant had resulted in a miscarriage of justice.

[11] Mode of taking and recording evidence in trials is dealt with under section 131 and 132 of the Criminal Procedure Act, 2009 while directions and modes by which evidence of a vulnerable complainant or witness evidence is taken is set out under sections 295 and 296 respectively.

[12] When the wordings of both sections are considered it appears that section 131 (and 132) is of general application to all witnesses while section 295 (and 296) is applicable to a special class of witnesses; i.e. vulnerable complainants or vulnerable witnesses. I think that what is relevant to the issue raised by the appellant is section 131(2). Section 131 is as follows:

‘131. — (1) Subject to any other provision of this Decree, all evidence taken in any trial under this Decree shall be taken—

(a) in the presencehe accused; sed; or

(b) when his or her personal aatendance has been dispensed with, in the presence of his or her lawyer (if any).

(2) Nothing in this secthall nt a judge or magr magistrate from authorising that appropriate arrangements be made for &#or —

(a) t of evidence from a remoteemote location; or

(b) the use of any other proceoure or means by which evidmay be taken during, or for the purposes of the trial —

where isre issues of safety or the interests of ju require the use of such means.’

[13] Thus, section 132(2) empowers a judge or a magistrate to authorise (i) taking of evidence from another location other than the court where trail is held in the absence or without the presence of the accused or (ii) to use any other procedure or means to take evidence in the trial, subject, however, to the condition that such authorization for appropriate arrangement should be made on safety issues or when the interests of justice so require.

[14] It appears to me that Part XX – Protecting Vulnerable Witnesses which contains section 295 and 296 are directly not applicable to the current situation because the complainant cannot be considered a vulnerable complainant or vulnerable witnesses. She was simply a reluctant witness. Commencement of the trial had been postponed several times due to her absence. Even on 15 November 2016 she had still maintained her position that she did not want to give evidence. However, on that day she started giving evidence and after a 30 minutes’ adjournment, the prosecution had made an application for the complainant to give evidence through Skype and the defence counsel Mr. Iqbal Khan had stated that he had no objection. Accordingly, at 12.40 pm the judge had directed that she would give evidence from Court No.3 via Skype. The proceedings show that she had again indicated that she did not want to proceed with the trial because she did not want to go through the incident over and over again. However, one again she had commenced her evidence and after a while she had said that she did not want to talk about the incident. After the lunch adjournment the prosecution had made an application under section 118 of the Criminal Procedure Act, 2009 to remand the complainant until she would give evidence. She had sought a 15 minutes’ break with no objection from the prosecution and defence. At 3.10 pm the prosecution had informed that the complainant was cooperating to give evidence via Skype. The defence counsel Mr. Iqbal Khan had again stated that he had no objection for her to give evidence as already arranged. Eventually, the judge did not have to make any order under section 118.

[15] Section 118 reads as follows:

‘118. — (1) Whenever any person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence —

(a) refuses to be sworn; o

>

(b) having beenn, refuses to anto answer any question put to him or her; or

(c) refuses or negleo produce auce any document or thing which the person is required to produce; or

<(d) rs to sign hign his or her her deposition –

without in any such case offering any sufficient excuse for refusal or neglect, the court may adjourn the case for any period not exceeding 8 days, ans, and may in the meantime commit the person to prison, unless he or she sooner consents

to do what is required.’

[16] According to section 119, even the spouse of an accused is a competent witness for the prosecution and defence and may be compelled to give evidence according to the provisions of the Act.

[17] Thus, there was no irregularity in the prosecution applying for the High Court judge to act under section 118 in as much as the complainant having being sworn had refused to answer the questions put to her without sufficient excuse for such refusal, though such an order was not required to be made in the end as she had volunteered to give evidence after the break.

[18] The gist of the appellant’s argument was that the complainant was not a vulnerable witness and a mere reluctance of her to give evidence was not a reason to allow her evidence to be taken via Skype. His counsel argued that trial judge had not strictly complied with section 256 in allowing the prosecution application in that (i) no hearing given to parties in chambers (ii) no reports received on the effect of giving evidence in person or in any other manner under section 256 and (iii) the need to minimise stress on the witness while ensuring a fair trial to the appellant not considered.

[19] Section 295 requires the judge or the magistrate to comply with the procedure laid down in the subsections of section 295 before allowing taking of evidence of a vulnerable complainant or a witness in any other mode other than in a face to face arrangement in the court house with the accused. The procedure requires an application (by the prosecution before the commencement of the trial or by either party during the trial) which should be determined by the trial judge or the magistrate in chambers after hearing both parties and calling for reports (if the judge considers it necessary to do so) on the effect of such witness giving evidence in person in the ordinary way or in any other mode. In determining the application the trial judge also should have regard to minimising the stress on such vulnerable complainant or witness and also ensuring a fair trial for the accused.

[20] In the first place, the complainant was could not be categorised as a vulnerable complainant/witness under section 256. Thus, there was no need to follow the procedural steps prescribed in that section. Neither the prosecution nor the defence nor the trial judge acted on that premise. In terms of section 131(1) the rule is that all evidence shall be taken in the presence of the accused unless issues of safety or the interest of justice require the taking of evidence as permitted under section 131(2). It is clear that the trial judge had acted under section 131(2) (though no section was mentioned) which explains why the appellant represented by a very experienced counsel simply did not object to the application to lead the complainant’s evidence via Skype without following the procedural steps under section 256. Section 131(2) permits taking of evidence from a remote location or by the use of other means such as Skype if the interests of justice so require. It is also clear that the trial judge had not stated for the record that he was acting in the interest of justice as the defence readily consented to have the complainant’s evidence on Skype. If that was going to cause any prejudice to the appellant, Mr. Iqbal Khan, being an experienced defence counsel, would never have given his consent.

[21] The legislature has not restricted the application of section 131 (and 132) to vulnerable complainants or witnesses. If that be the case such intention could have been expressly stated in the same manner the legislature has done under Part XX – Protecting Vulnerable Witnesses (i.e. sections 295 and 296). When safety issues or interests of justice require, a magistrate or a judge could act under section 131 independent of section 256 which comes into play when the complainant or the witness is ‘vulnerable’. However, the term ‘vulnerable’ is not defined in the Act.

[22] The counsel for the appellant relied on Lotawa v State [2014] FJCA 186; AAU0091.2011 (5 December 2014) in support of his arguments under the first and second grounds of appeal. In Lotawa the main contention was on the identity of the offender and the complainant gave evidence via Skype from Sydney, Australia. At one point the prosecutor had asked her to make a dock identification of the accused and the receiving camera had immediately swung to the dock and she identified the accused who sat there. The appellant challenged allowing the complainant’s evidence to be taken via Skype by the trial judge under sections 295 and 296 of the Criminal Procedure Act. Therefore, understandably the focus of the main judgment was on sections 295 and 296 of the Criminal Procedure Act and the Court insisted on strict compliance with the provisions in section 295 and 296. The Court also added that the judge or the magistrate should adduce reasons to explain how he or she arrived at the decision to permit such evidence and ordered a retrial. There is no mention of sections 131 and 132 in the main judgment at all.

[23] The second judgment of Madigan, JA has indicated that Skype could be used firstly to protect ‘vulnerable’ witness in terms of sections 295 and 296 and secondly for the good administration of justice to hear a witness from abroad pursuant to section 131(2). Moving on, Madigan, JA has combined these sections together as if both deal with ‘vulnerable’ witnesses and stated that Skype evidence should be used only rarely for the ‘vulnerable’ witnesses and hardly ever for convenience reasons. Those remarks as far as sections 131 and 132 are concerned form part of obiter dicta. Unfortunately, the operative words in section 131(2) namely ‘issues of safety’ and ‘interest of justice’ have received hardly any mention in the judgment of Madigan, JA. Moreover, the legislature has not imposed any fetter in the operation of sections 131 and 132 that they could be resorted only to obtain evidence of ‘vulnerable’ witnesses or only to hear a witness from abroad.

[24] Thus, Lotawa is not an authority on the application of sections 295 and 296 of the Criminal Procedure Act and the appellant’s reliance on Lotawa is rather misplaced.

[25] It is also relevant to consider whether ‘interest of justice’ had been served by allowing the complainant to give most part of her evidence via Skype. She had explained the reason for her initial reluctance in answer to a question posed by the defence counsel and also stated under re-examination as to what made her eventually give evidence.

‘Q: You were hesitant to give evidence in this case?

A: Yes I was.

Q: I put it to you, the reason you did not want to give evidence because whatever you said against your step father is not true?

A: Not the reason, I didn’t want to give evidence because I didn’t want to come and go through the experience over and over again as I told before I that thought this case has already finished until I got summoned in August that I have to give evidence in Court.

Re-examination

Q: What make you give evidence this afternoon?

A: Because I know whatever has happened was the truth.’

[26] I also observe from the proceedings that the complainant’s evidence had been very straightforward and free-flowing. She had told what happened on the day in question without any embellishments and not attempted to hide any uncomfortable events that had happened before. Zuhaad’s evidence on her prompt complaint of rape by the appellant had enhanced the reliability and credibility of her evidence greatly [(vide Raj v State [2014] FJSC 12; CAV0003.2014 (20 August 20Conibeer v State [2017] FJCA 135; AAU0074.2013 (30 November 2017)].

[27] I have also obso observed from the proceedings that the appellant’s counsel had cross-examined the complainant giving evidence on Skype without indrance or handicap. At no stage had the defence counsel fsel faced any disadvantage by Sky evidence. With the defence counsel also consenting to Skype evidence, the appellant seems to be only taking it up now just as a point of appeal not because it had caused a miscarriage of justice.

[28] I have no doubt that allowing the complainant’s evidence to be taken via Skype in this case had certainly served the interest of justice, for otherwise a serious crime would have gone unpunished. Criminal justice system cannot permit subversion of the course of justice at the election of a complainant. Once the commission of a crime comes to light it is no longer a matter between the complainant and the accused. It becomes a matter between the wrongdoer and the society at large. The interests of justice are not confined to the interests of the prosecution and the accused in a particular case. They include the interests of the public [(vide Au Pui - Quen v. Attorney General of Hong Kong (1979) 1 ALL E.R. 796; Togava v (MajorMajority Judgment) [1990] FJCA 6; AAU0006u.90s (10 October 1990)].

[29] Consequently, there was no miscarriage of justice and as a result pursuant to section 23(1) of the Court of Appeal Act the a must be dismissed. Thd. There is no requirement to conside application of the proviso because there has been no irregularity in allowing the complainplainant to give evidence via Skypeh can be said to be such a ch a departure from essential requirements of the law that it goes to the root of the proceedings where it can be said that without considering the effect of it on the verdict that the appellant has not had a proper trial and there has been a substantial miscarriage of justice; nevertheless, there is no rigid formula to determine what constitutes such a radical or fundamental error and in the end no mechanical approach can be adopted and each case must be determined its own circumstances (vide Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365).

[30] Therefore, I am fully convinced that in this case there is no necessity even to consider the proviso to section 23(1) of the Court of Appeal Act. In my judgment, had it been necessary to consider the proviso the only conclusion would have been that there had been no substantial miscarriage of justice. If necessary, I would have had no hesitation in applying the proviso.

03^rd and 04^th grounds of appeal

[31] The appellant argues under these grounds of appeal that the learned trial judge had not properly directed the assessors on the medical history of the complainant, the inconsistency between the history given by the complainant and the findings of the clinical examination and the animosity between the complainant and the appellant. The appellant has not clearly articulated the alleged inconsistency between the history and medical findings.

[32] It appears that the learned trial judge had not addressed the assessors in the summing-up specifically on medical evidence tendered in the form of the medical report as an agreed fact without calling the doctor. However, I find that in paragraph 07 of the summing-up the judge had asked the assessors to reach their opinion on evidence from the witness box, agreed facts, documents and exhibits and in paragraphs 09, 10 and 11 of the judgment the trial judge had fully dealt with the medical report in detail including the alleged inconsistency between the history given by the complainant and the findings of the clinical examination i.e. vaginal examination not showing signs of trauma. That, in my mind, can be explained by the fact that the complainant had obviously been sexually active for some time and had an abortion as well. She had not said that she physically resisted or the penetration caused any pain though the act of penetration was despite her protests.

[33] It is clear that the appellant’s counsel had decided as a trial strategy to accept the medical report as an agreed fact and therefore the prosecution was not required to call the doctor to give evidence. Had the appellant wanted to elicit more from the doctor who had examined the complainant after the alleged act of rape, he could have easily called him or refrained from agreeing to treat the medical report as an agreed fact. Had the doctor been summoned he could have explained why there could or could not be signs of vaginal trauma in this instance. In the absence of such evidence the reason adduced by the trial judge in paragraph 11 of the judgment in explaining why there may not have been physical signs of any act of sexual penetration cannot be criticised. His statement in paragraph 09 of the judgment that the medical report does not reveal any significant findings and his further analysis why there were no injuries on her body or in genitalia given the complainant’s evidence that she did not offer physical resistance to the act of penetration has to be looked at in this context. It should also be borne in mind that the complainant had admittedly had sexual intercourse before with her boyfriend and undergone an abortion.

[34] I also find that contrary to the appellant’s assertion, the trial judge in paragraphs 19, 50-53 and 64-66 of the summing-up had addressed the assessors on his version of events. In addition the trial judge had dealt with the animosity between the complainant and her boyfriend on the one hand and the appellant on the other in paragraph 05 of the judgment.

[35] Therefore, the appellant’s grievance under these grounds of appeal has no merit.

05^th ground of appeal

[36] The appellant argues that the trial judge should have directed the prosecution to call the complainant’s mother and the uncle. Exercising the prosecutorial discretion the State had decided to call only her boyfriend to whom the complainant had made a complaint immediately after the alleged incident of rape but not the mother who, of course, had arrived at the house before the boyfriend arrived. The first complaint was made to Zuhaad and not the mother. If the defence so desired, it could have called any one of them as defence witnesses.

[37] There is nothing to indicate that the counsel for the appellant had made an issue of this at the trial stage. Nor had he sought any redirections on this matter. Therefore, appellant is not even entitled to raise this as a point of appeal at this stage [vide Tuwai v State CAV0013.2015: 26 August 2066 [2016] FJSC 35 and Alfaaz v State [2018] FJSC 17; CAV0009.2018 (30 August 2018)]. This grhas no merit.

Bandara, JA

[38] I have read the draft judgment of Prematilaka, JA and agrth his reasoning and concluonclusions.

Order

1. Appeal dismissed.
   

Hon. Mr. Justice S. Gamalath

JUSTICE OF APPEAL

Hon. Mr. Justice C. Prematilaka

JUSTICE OF APPEAL

Hon. Mr. Justice W. Bandara

JUSTICE OF APPEAL