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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO. AAU0145 OF 2020
[High Court Action No: HAC 88 of 2016]
BETWEEN:
ARUN KUMAR
Appellant
AND:
THE STATE
Respondent
Coram : Mataitoga, RJA
Qetaki, JA
Dobson, JA
Counsel : Mr Heritage, S for the Appellant
Mr Burney, LJ for the Respondent
Date of Hearing : 8 July, 2024
Date of Judgment : 26 July, 2024
JUDGMENT
Mataitoga, RJA
[1] I have reviewed the judgment of Qetaki JA in draft. I concur with the reasons and conclusion, therein.
Qetaki, JA
Background
[2] This is an appeal by Arun Kumar against conviction in the High Court of Fiji at Lautoka. The appellant was charged on two counts of Rape contrary to section 207(1) and (2) (b) and (3) of the Crimes Act 2009, committed on KR (name withheld) who is his step-daughter, but said to have been considered by him as real daughter, on 23 April 2016 at Nadi in the Western Division. The particulars of the offences were: on Count 1- that on 23rd day of April 2016 at Nadi in the Western Division, penetrated the vagina of K.R., a child under the age of 13 years with his fingers. On Count 2- on the 23rd day of April 2016 at Nadi, in the Western Division, penetrated the vagina of K.R., a child under the age of 13 years with a pen.
[3] The assessors had expressed a unanimous opinion that the appellant was not guilty of the charges of rape, however the learned High Court Judge had disagreed with the assessors and convicted the appellant on both counts. The appellant was sentenced on 20 October 2020 to 11 years and 11 months of imprisonment on each count to be served concurrently with a non-parole period of 8 years 11 months.
[4] Aggrieved by the decision the appellant lodged a timely appeal against conviction. The notice of appeal and application for leave to appeal was filed on 18 November 2020. There were 10 grounds. Both parties had filed written submissions and the application was heard on 25 July 2022 in a Ruling delivered on 27 July 2022 His Lordship Prematilaka, RJA, refused the application for leave.
[5] Thereafter, the appellant filed his notice of appeal and application for leave to appeal against conviction on 9 August 2020 in the Registry for consideration by the full Court, urging 10 renewed grounds, which are similar to the grounds already considered and dismissed by the learned single judge.
[6] Section 21(1) (b) of the Court of Appeal Act allows the appellant to appeal against conviction only with leave of the court. In order to determine whether leave to appeal should be granted, the test that the Court of Appeal has adopted is “reasonable prospect of success” as established in a line of cases, including: Caucau v State [2018] FJCA 171; AAU0029 of 2016 (4th October 2018); State v Vakarau [2918] FJCA 173; AAUo52 of 2017(4th October 2018); and Sadrugu v The State [2019] FJCA 87; AAU0057 of 2015 (06 June, 2-19). On an application for leave to appeal against conviction, it is to be determined also whether any ground of appeal raises a properly arguable point that is worthy of the consideration of the Court of Appeal: Singh v State [2010] FJCA 53;AAU0083.2010 (16 December 2010); Dutt v State [2016] FJCA 3;AAU36.2015 (27 January 2016), Singh v State [2016] FJCA 7; AAU120.2014 (26 February 2016 ); Naisua v State [2013] FJSC 14; CAV 10 of 2013 (20 November 2013).
The Facts
[7] The brief facts were:
(a) On a Saturday evening in April 2016, the appellant drove the complainant to a “dark place”.
(b) The appellant removed the complainant’s pants, and penetrated her vagina first with his fingers (Count 1), and then with a pen (Count 2).
(c) The complainant’s mother on the next morning (Sunday) noticed the complaint’s blood-stained pants.
(d) Complainant then informed her mother of what the appellant had done to her.
(e) The complainant’s mother promptly lodged a complaint with the Police.
(f) Medical examination revealed injuries to the complainant’s genitalia.
(g) Dr Jenyo testified at trial that he found a fresh tear to the complainant’s hymen at 2 o’clock position which was consistent with forceful penetration of the complainant’s vagina.
(h) The appellant gave evidence in defence and called a witness Munesh Reddy to give evidence on his behalf while the prosecution called the complainant, her mother and the doctor as witnesses for the prosecution.
The evidence and the judgment
[8] At the trial hearing on 14th and 15th of September 2020, evidence were given for the prosecution by K.R (PW1). The complainant, her mother (PW2) and Dr Toyin Jenyo (PW3), while the accused gave evidence and called a witness Mr. Munesh Reddy, on his behalf. In his judgment, Chamath S. Morais J, provided the reasons for the judgment, as follows:
“5. I direct myself in accordance with the law and evidence led in this case, inclusive of which I have discussed in my summing up to the assessors.
Analysis
10. When considered the evidence of PW1, K. R, either than a few inconsistencies, there are no major inconsistencies or contradiction per-se or inter-se. The evidence of the PW1 is supported by the evidence of the PW2 and PW3. The PW1’s evidence was convincing enough and she has not lied. It is not very material whether the act was committed at the back seat or at the front passenger seat of the car, which was never verified from the PW1.The other issue raised were in regards to the PW1 sitting on the floor and having breakfast and whether she was taken to the bedroom or the washroom by the PW2.These are irrelevant to the question in issues. The findings of the PW3 is in conformity of the information given by the PW2 as related to her by the PW1.Having scrutinised the evidence of the PW1 and having observed her demeanour carefully, I am convinced that the evidence of the PW1 is acceptable and reliable. Therefore, in my view the prosecution has proved their version beyond reasonable doubt.
Renewed Grounds of Appeal
[9] These renewed grounds of appeal against conviction were the same grounds urged at the leave stage: -
Ground 1- That the trial judge misdirected himself and contradicted himself in accordance with the directions given in his summing up when assessing the testimony of witnesses and as such caused substantial miscarriage of justice.
Ground 2- That the learned trial judge erred in law and in fact in not directing himself when finding that the evidence of the complainant was credible when he failed to consider that there were several inconsistencies in her evidence in court. Failure to direct himself sufficiently on previous inconsistent statement of the complainant caused a substantial miscarriage of justice.
Ground 3- The learned trial judge erred in law and in fact in misdirecting himself when he took into consideration demeanour of witnesses to believe or not to believe relying only on the demeanour of the complainant and not whole evidence as a whole caused substantial miscarriage of justice.
Ground 4 – That the learned trial judge erred in law and fact in not accepting the evidence given by the appellant without giving any cogent reasoning and stating that “with regret I am compelled to disagree with the unanimous opinion of the assessors.’’
Ground 5- That the learned trial judge erred in law and fact in overturning the unanimous opinion of the assessors of not guilty and failing to consider that the facts of the case and the evidence given by the appellant and the complainant clearly indicated that the complaint by the complainant was highly likely to be falsely made.
Ground 6- That the learned trial judge erred in law and in fact in misdirecting himself when he stated that..... “I am satisfied that the prosecution version is acceptable and they have proved their stance on this issue satisfactorily” relying only on the demeanour of the complainant and not whole evidence as a whole caused a substantial miscarriage of justice.
Ground 7- That the learned trial judge erred in law and in fact in overruling the unanimous opinion of the assessors of not guilty did not give cogent reasons as to why he overruled the unanimous not guilty opinion of the three assessors in light of the whole of the evidence presented in the trial.
Ground 8-That the learned trial judge erred in law and in fact in not directing himself the possible defence on evidence and as such by his failure there was a substantial miscarriage of justice.
Ground 9-That the learned trial judge erred in law and in fact by finding the appellant guilty of the offence charged contradicted himself in his summing up at paragraph 25 when he stated:-
“25. The PW1 K.R. is the sole witness of the above incident, for the prosecution. The law requires no corroboration. Therefore, you can act on the evidence of a sole witness. However, my direction is that if you are to rely on a sole witnesses’ evidence you must be extremely cautious of the credibility and the dependability of such evidence...’’
That despite the above directions the 3 assessors found the appellant not guilty and the learned trial judge by overturning their unanimous opinion of not guilty and without giving cogent reasons had caused a substantial miscarriage of justice.
Ground 10- That the learned trial judge erred in law and in fact when he shifted the burden of proof to the appellant when he stated that the “Accused had failed to create a reasonable doubt in the prosecution case” and as such there has been a substantial miscarriage of justice.
Court of Appeal Act (“the Act”)
[10] Part IV of the Act on Appeal in criminal cases contains provisions relevant to criminal appeals to the Court of Appeal. Section 21(1) (b) is relevant to this appeal, as follows:
“21(1) A person convicted on a trial held before the High Court may appeal under this Part to the Court of Appeal-
(a) ..............................
(b) with leave of the Court of Appeal or upon the certificate of the judge who tried him that is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact or any other ground which appears to the Court to be sufficient ground of appeal; and
(c)...................................................
[11] Section 23 of the Act applies to determination of appeals in ordinary cases, it states:
“23(1) The Court of Appeal-
(a) on any appeal against conviction shall allow the appeal if they think that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; and
(b) on any appeal against acquittal..................................;
Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal against conviction or against acquittal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has occurred.
(2) Subject to the provisions of this Act, the Court of Appeal shall-
(a) If they allow an appeal against conviction, either quash the conviction and direct a judgment and verdict of acquittal to be entered, or if the interests of justice so require, order a new trial; and
(b) If they allow an appeal against acquittal........................”
Discussion –Grounds of Appeal
[12] In assessing and evaluating the grounds of appeal, I am mindful of the contents of the Record of the High Court of Fiji (“Record”), the written submissions of the parties, which I have considered, with the oral submissions made at the hearing, and the relevant laws. I will first discuss ground 6 of the appeal for the reason only that counsel for the appellant chose to address the ground first in making his oral submissions at the hearing of the appeal.
[13] Ground 6: In substance, the ground alleges that the learned trial judge misdirected himself when expressing his satisfaction that the prosecution’s version is acceptable and the prosecution has proven their case on the charges satisfactorily, relying only on the demeanour of the complainant, and not the whole of evidence before him especially the evidence of the accused, and that has caused a substantial miscarriage of justice.
[14] For example, it is argued that the judge did not refer to the elements of the offence (2 Counts) of rape for which the accused was charged, the first count alleging penetration by finger, and the second, penetration by pen. Also, that the judge did not clearly state whether the prosecution had proven its case beyond reasonable doubt on each count, having regard to the elements of the offences. The appellant submits that the prosecution failed to prove what it should prove, that is that the elements of the two counts were proven beyond reasonable doubt.
[15] To the contrary, a closer look at the summing up (see paragraphs 18 to 22), would indicate that the learned judge had not misdirected himself, for he had fully covered the main aspects of the offending in his direction to the assessors, including the essential elements of the offence; what the prosecution must prove, and the elements of penetration. He had also presented a comprehensive summary of the evidences adduced on both sides in paragraphs 26 to 36 of the summing up. The directions were aimed to guide the assessors on their consideration, evaluation and assessment of the evidence that were presented to them in order for each to form an opinion on the guilt or otherwise of the accused. There were no objections to the directions, and no request for redirection by the accused or his counsel at the end of summing up.
[16] The appellant also submits that despite the judge’s reliance on the complainant’s demeanour, the complainant’s evidence cannot be accepted as, they are questionable due to inconsistencies and discrepancies of the complainant’s evidence on oath for example, at page 230 of the Record, where the complainant was confused with the day on which the rape took place, the 23rd April, 2016, which she mistook as a normal school day, when in fact the incident occurred on a Saturday. The second instance is when the complainant stated she went straight to sleep on returning home-which was not the case, as she had watched TV etc. with her mum and the accused before going to sleep- page 235 of Record. However, the learned judge had comprehensively directed the assessors on inconsistencies, and on how the assessors may deal with any issue of inconsistency in the evidence given at the trial-see paragraphs 8 to10 of the summing up at pages 65-66 of Record. The learned judge had also dismissed the alleged inconsistencies and discrepancies as not going to the root of the issues before the trial - see paragraphs [20], [24] and [25] below.
[17] “Demeanour”- How should the Court deal with demeanour when raised, as in this ground of appeal. In a recent decision of this Court: Aporosa Dauvucu &5 Others v The State Criminal Appeal No. AAU0152 of 2019 (30th may, 2024), His Lordship Dobson, JA stated that, “Primary reliance on demeanour is a cause of concern “, and “Substantial research in numerous jurisdictions found that demeanour is not a reliable indication of the truthfulness of a witness. “His Lordship was referring to the New Zealand jurisprudence reflecting the position there and in England, which were highlighted in paragraph [14] (a) and (b) of the judgment in the above case. His Lordship also discussed the position in South Africa where similar concerns are recognised, “although perhaps recognising a more meaningful role for assessment of demeanour where done together with objective assessments of the coherence of a party’s total evidence “and set out to discuss the South African position in paragraph [15] of the judgment, as follows:
“[15] Similar concerns are recognised in South Africa, although perhaps recognising a more meaningful role of assessment of demeanour where done together with objective assessments of the coherence of a party’s total evidence. For instance, the High Court, Free State Division Bloemfontein, judgment Mofutsana v. The State No. A287/2017 (1 November 20180 adopted earlier observations that demeanour is “at best, a tricky horse to ride. That judgment continued:
[20] [Demeanour of witness is] considered real evidence in the sense that it is something that the trial court observes. The observation or evaluation is therefore in the eye of the beholder and very much subjective with the danger of error due to basic human nature, this instrument must be applied wisely by the trier of evidence. From cases such as Medscheme Holdings (Pty) Ltd and Another v Bhamjee 2005 (50 SA 339 (SCA) the following principles evolved as concluded by Schwikkard et al: Principles of Evidence at 30.4:
(a) Demeanour, in itself, is a fallible guide to credibility and should be considered with all other factors: it is in the overall scrutiny of evidence that demeanour should be considered and then only if there are sufficient indications thereof to be significant,
(b) The limited value of a finding on demeanour becomes even less when an interpreter is used.
(c) The Constitutional Court has pointed out the danger of assuming that: “all triers of fact have the ability to interpret correctly the behaviour of a witness, notwithstanding that the witness may be of a different culture, class, race or gender and someone whose life experience differs fundamentally from that of the trier of fact.”
(d) Demeanour can hardly even be decisive in determining the outcome of a case. Demeanour is merely one factor to be taken into account: “In addition to the demeanour of a witness”, said Krause J in R v Momekela & Commandant 1936 OPD 24,”one should be guided by the probability of his story, the reasonableness of his conduct, the manner in which he emerges from the test of his memory, the consistency of his statements and the interest he may have in the matter under enquiry.”
(e) A trial court is obviously in a better position than the court of appeal to make a finding on demeanour; and the court of appeal “must attach weight” to the trial court’s finding. It is as a general rule important that a trial court should record its impression of the demeanour of a material witness.” (Citations omitted)
[18] In his judgment, the learned trial judge in this case had relied to an extent on his perception of the demeanour of witnesses especially that of the complainant PW1.The question is whether the assessment on demeanour is supported by the judge’s overall view of the coherence of the complainant’s evidence and the evidence of others, including PW2 and PW3? What is the effect, on that assessment, of the inconsistencies and discrepancies raised against PW1’s evidence by the defence? Would the judge’s reasoning be viewed as “entirely adequate” without his reliance on the assessment he made on demeanour of the witnesses, including the defence witnesses?
[19] In my view the learned judge’s comments under discussion (at paragraph 8 of the judgment), need to be considered with his earlier comments in paragraphs 7 of the judgment, where the learned judge was considering Dr Jenyo’s (PW3) evidence. Dr Jenyo was the doctor who medically examined the complainant when the latter was brought to the medical centre. The judge established that the doctor based his findings on what he saw when physically examining the complainant. The doctor did not rely on the mother, PW2’s evidence. This was in the context of other evidence which was advanced to possibly try to discredit the evidence led pertaining to the injuries sustained by the complainant. In fact, the judge stated that he had observed “all the witnesses and their demeanour”, and not only that of the complainant and the prosecution witnesses, but all witnesses. The judge was convinced beyond reasonable doubt “that PW1 had suffered recent injuries in her vagina region by the date of her examination by the doctor”. This conclusion is based on the evidence of the doctor who physically examined PW1. Would the judge’s reasoning be entirely adequate without the assessment on demeanour?
[20] I think Yes, for the following reasons. Firstly, the judge had relied on the doctor’s evidence as discussed above. Secondly, the judge in resolving the question of who committed those injuries on PW 1 the complainant, relied on “the word of PW1 against the word of the Accused”-see paragraph 9 of judgment. Thirdly, the judge considered PW1’s evidence as “convincing enough and she has not lied”. Fourthly, the learned judge, with reference to PW1’s evidence stated, “other than a few inconsistencies, there are no major inconsistencies or contradiction per-se or inter-se”. Fifthly, the judge had carefully considered and scrutinised PW1’s evidence and observed her demeanour carefully, and had formed the view that the prosecution has proved their version beyond reasonable doubt, much in contrast to his observation of the position of the defence , in paragraph 11 of judgment, as follows :
“The evidence offered by the accused is much inconsistent with the evidence of his own witness, Munesh Reddy. The reliability of the accused’s evidence is much limited. His explanations of the inconsistencies are non-convincing. Therefore, I am certain that the accused had failed to create a reasonable doubt in the prosecution case.”
[21] In view of the above, it is clear that the judge had not relied substantially or solely on the complainant’s demeanour, as he had also considered PW2’s and PW3’s evidence in support, and the totality of the evidence available to the Court. The ground is not arguable, and is dismissed.
[22] Grounds 1-The appellant alleges that the learned judge misdirected and contradicted himself in the directions he gave in the summing up when assessing the testimony of witnesses, as such caused a miscarriage of justice. Paragraphs 3 and 4 of the summing up state as follows:
“3. Evidence in this case is what the witnesses said from the witness box inside this court room and the admissions made. As I have stated to you in my opening address, your opinion should be based only on them. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard that information.
4. A few things you heard in this court room are not evidence. This summing up is not evidence, etc....................... You may take into account these questions, suggestions, arguments and comments when you evaluate the evidence only to the extent you would consider them appropriate.” (Underlining is for emphasis)
[23] Like the learned single judge at the leave stage, I too do not find any misdirection or contradiction in what the trial judge stated in paragraphs 3 and 4 of summing up. The learned trial judge had made himself absolutely clear as to what the assessors should consider as evidence and what not. The first sentence in paragraph 3 (underlined) can be taken as the generally accepted principle/ rule; while the first sentence in paragraph 4 can be taken as limiting or qualifying the application of the principle/rule, and providing examples of instances where the principle’s/rule’s application may be limited, one such instance is the summing up, which is conducted inside the court room, but which is not evidence. If indeed there was a misdirection or contradiction, no request for redirection was made by the accused or his counsel at the end of summing up. This ground is not arguable. It is dismissed.
[24] Ground 2- The appellant alleges that the trial judge erred in finding that the complainant’s evidence was credible, and having failed to take into consideration the several inconsistencies in her evidence. That is, the trial judge had failed to direct himself sufficiently on previous inconsistent statements of the complainant particularised in the written submissions of the appellant. However, it is noted that in summing up, the learned judge directed the assessors on inconsistencies in evidence of witnesses, as follows:
“8. ..................This is how you should deal with inconsistencies. You should first decide whether the inconsistency is significant. That is whether the inconsistency is fundamental to the issue you are considering. If it isn’t then you can disregard that inconsistency. If it is, then you should consider whether there is any acceptable explanation for it. If there is an acceptable explanation for the inconsistency, you may conclude that the underlying reliability of the account is unaffected. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you should not except a witness to have a photographic memory or every detail to be the same from one account to the next.
[25] In overturning the assessors’ unanimous opinion of not guilty, the learned judge directed himself on the issue of inconsistency in his judgment at paragraph 10 thereof –see paragraph [8] above, where the learned judge also commented on the instances raised by the appellant in support of this ground. Also, it is noted, that in his Ruling, the learned single judge did say that the learned judge summarised the approach to inconsistencies in PW1’s evidence at paragraph 8-10 of summing up, and directed himself on them at paragraph 10 of the judgment when he concluded that those were minor in nature and did not affect the very foundation of the prosecution case. That is the position as far as the judge was concerned, a position I agree with.
[26] The trial judge seemed to have followed the broad guidelines that discrepancies which do not go to the root of the matter and shook the basic version of the witnesses cannot be attached with undue importance. However, there may be inconsistencies between the evidence before the court and statement to Police that can affect the credibility of a witness (see: Nadim v State Criminal Appeal No. AAU 0080 of 2011). I agree with the learned single judge, and having considered the instances cited by the appellant, I see no reason to disagree with the trial judge. The respondent submits that the learned single judge was plainly correct in his assessment that the judge did not err in his assessment that the inconsistencies relied on by the appellant did not go to the root of the matter. Put another way, any inconsistencies there may have been were peripheral.
[27] In agreeing with that conclusion, I note and acknowledge the authorities cited by the appellant relevant to previous inconsistent statements (in the appellants written submissions) to the effect that: (i) A jury should be directed that the previous inconsistent statements, whether sworn or unsworn, do not constitute evidence on which they can act: R v Golder; R v James; R v Porritt (1960) 3 All ER 457; (ii) Assessors are to be cautioned....that it is dangerous to accept sworn evidence which is in conflict with statements previously made by the same witness, or at least that such evidence be submitted to close scrutiny before acceptance: Gyan Singh v R (19630 9 FLR 105 , and (iii) That earlier statements made to Police in conflict with evidence given in court, and with no credible explanation of the discrepancy, and if accepted , may amount to an error in law: Jagdishwar Singh &Another v R (1962) 8 FLR159. The learned trial judge had determined that the inconsistencies raised by the appellant were minor and not material to the issues to be determined. This ground is not arguable. It is dismissed being without merit.
[28] Ground 3: The appellant submits that the learned judge had erred in fact and law and misdirected himself, when he took into consideration the demeanour of witnesses to believe or not to believe, but relying only on the evidence of the complainant and not the whole evidence as a whole, and substantial miscarriage of justice is caused as a result. I am somewhat confused with this ground and the way it has been argued in the written submission and in court. This ground is linked to Ground 6 already discussed - see paragraph [16] to [20] above. It would appear that the appellant’s counsel was finding a way to re-introduce the theory that it was the mother who had concocted the whole story, and caused the injury to PW1 herself, due to the mothers attempt to cover-up an affair with a neighbour. The appellant’s theory was rejected by the trial judge, as follows: Further, the above contention has few flaws, it should be noted that PW2 was never suggested that she gave wrong information to the doctor. Though it is suggested by the defence through others, that PW2 framed the accused in order to hide her relationship with a neighbour, the PW2 was never directly confronted with such proposal.’
[29] The question: Who committed the injuries was determined by the trial judge after considering “the word of PW1 against the word of the Accused’”-see paragraph 9 of judgment. Also, in his Ruling, the learned single judge, on this aspect stated, that upon perusal of the judgment he did not find the complaint that the trial judge had relied solely on the demeanour of the witnesses and not their evidence, has any merits. This has been my view on the allegation of misdirection here also. The learned judge had analysed the relevant issues arising from evidence and he is not expected to repeat everything he had said in summing up, when he had directed himself on the evidence discussed in the summing up: Fraser v State [2021] FJCA 185; AAU128.2014(5 May 2021).
[30] The appellant asserts that the complainant was “evasive/confusing” whilst giving evidence in court. I agree with the respondent who submits that , such assertion is not borne out by the transcript of PW1’s evidence in cross-examination (pages 236-245 Record) .Respondent says: On the contrary, the complainant who was 12 years old when she gave evidence at trial (some 4 years after the rape) gave clear, concise and unvarnished evidence, best epitomised by her answer to defence counsel’s suggestion that she had been coached to give false evidence: “I wasn’t coached my Lord, whatever I remember I tell, whatever I have forgotten I don’t tell.(page 240 Record).
[31] On the central issue, the complainant was unshakeable in her testimony –see page 244 Record:
Q: Witness finally I am putting to you is this, that your Papa did not put finger in your vagina or put a pen in your vagina”?
A: I recall my Lord, he did it, I remember.
Q: I am putting it to you it’s your mother who suggest to you that your Papa did these things, your mother?
A: No my Lord, mum didn’t tell me, I remember what Papa did to me.”
[32] It was open to the judge to accept the child complainant as a reliable and truthful witness. Ground 3 is not arguable. This ground fails, and is dismissed.
[33] Ground 4: The appellant is challenging the learned trial judge’s non- acceptance of the accused’s evidence at the trial, and without giving any cogent reasons for such, and for stating that he regretted disagreeing with the unanimous opinion of the assessors. Appellant submits that he had provided sufficient/reliable evidences before the court-however, they were not accepted. That the trial judge was “unfair, unjust and unreasonable” in what he stated in paragraph 12 of the judgment, when he overturned the unanimous opinion of the assessors and failed to give any reason for so doing. Counsel for the appellant did not cite any case(s) as authority in support of the appellants contention, although the appellate Courts have made numerous pronouncements on the law in this area of criminal law over the years. A review of the decisions on the subject is provided in the decision of this Court: Eneshwar Raj v The State, Criminal Appeal No. 008 of 2018 delivered on 25th May 2023-paragraphs [18] to [25] of judgment.
[34] In Fraser v State [2021] FJCA 185; AAU 128.2014 (5 May 2021), which was discussed in Eneshwas Rajs’s case at paragraph [25], it was held:
“[23] ......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 judges agreement with the assessor’s opinion is not viewed as a mere rubber stamp of the latter [vide Mohammed v State [2014] FJSC 2; CAV02.2013 (27 February 2014)), Kaiyum v State [2012]FJCA 35; AAU007.2012 (14 March 2014), and Kumar v State [2018] FJCA 136(30 August 2018)].
[24] .......... When the trial judge disagrees with the majority of assessors he 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 judges 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; CAV 0024.2008(6 February 2009), Ram v State [2012]FJSC 12;CAV0001.2001(9 May 2012), Bavuka v State [2019] FJCA 209;AAU58.2015 (3 October 2019) and Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020)].
[25] In either situation the judgment of a trial judge cannot 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 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 reasonably be assumed that in the summing-up there is 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.”
[35] In another recent case Prasad v State [2023] FJCA 280; AAU45.2022 (18 December2023), the learned Prematilaka RJA comprehensively discussed the approach to the issue taken in several comparable jurisdictions and provided a helpful summary of the correct approach to assessing the adequacy of reasons for verdict, at paragraphs [27]-[28]:
“27. Therefore, while it goes without saying that the giving of adequate reasons lies at the heart of the judicial process and therefore a duty to give reasons exist, the scope of the duty is not to be determined by any hard and fast rules. Broadly speaking, reasons should be sufficiently intelligible to permit appellate review of the correctness of the decision and the requirement for reasons is tied to their purpose and their purpose varies with the context. Trial judge’s reasons should not be so generic as to be no reasons at all but they need not be the equivalent of a jury instruction or summing-up to the assessors. Not every failure or deficiency in the reasons provides a ground of appeal, for the appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself. Where the trial decision if deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient. There is no need in that case for a new trial.
[36] The respondent submits that applying those principles to the present case, there can be no doubt that the summing up and the judgment, read together provide adequate reasons for the judge’s verdict.
[37] The learned trial judge had given his reasons. These are stated in both the judgment and the summing up to the assessors. Paragraphs 3,4 ,5 and 6 of the judgment affirms that the judges’ reasons set out in paragraphs 7 to 12 of the judgment include and take account of matters raised in the summing-up. The learned judge states:
“3. The accused pleaded not guilty to the charges and the ensuing trial lasted for 2 days. The complainant K.R., her mother and Dr Toyin Jenyo gave evidence for the prosecution while the accused gave evidence and called a witness Mr. Munesh Reddy, on his behalf.
[38] The learned trial judge had indicated why he accepted PW3s evidence of the injuries, and PW1s and PW2’s evidences in the same matter - see paragraph 7 and 8 of judgment. At paragraph 9 the judge stated that in considering the issue of who committed the injuries, “it is the word of the PW1 against the word of the Accused”. He rejected the inconsistencies as minor only and gave reasons in paragraph 10. At paragraph 11 the learned judge stated why the evidences of the accused failed to raise a reasonable doubt on the case for the prosecution. In my view, the learned trial judge had given cogent reasons and had satisfied the threshold required by the authorities. There are no deficiencies in the learned trial judge’s reasons preventing or foreclosing this court from reviewing the correctness of the decision.
[39] In Fiji, the assessors are not the sole judge of the facts. The judge is the sole judge of facts and law in respect of guilt. The assessors are there only to offer their opinions based on their views of the facts and it was the judge who ultimately decided whether the accused was guilty or not: Fraser State (supra). Ground 4 is not arguable. It has no merit and is dismissed.
[40] Grounds 5 & 7. These Grounds are closely linked to Ground 4 above where the appellant challenges the trial judge’s decision in overturning the unanimous opinion of the assessors, without giving proper or cogent reasons as required by law. The relevant issues have been discussed above. The Grounds have no merit. They are dismissed.
[41] Ground 8: The appellant complains that the judge failed to direct himself on possible defences. The ground relies on Munesh Reddy’s evidence in support of the accused. It appears from the written submissions, that, the point that the appellant may have intended to make is that, the complainant had the opportunity to raise a complaint on what the accused did to her on the same evening (Saturday) as the complainant, her mother and the accused were together at Burger King, and had also watched TV together that evening before they went to sleep. However, the complainant did not take the opportunity to raise the complaint at those times. Further, the appellant says that the learned trial judge erred in law and in fact in not raising a defence, given the evidence available. There are a number of issues to be raised against this ground. Firstly, the appellant has not specified what type of defences could be raised under the circumstances? Secondly, the fact that the complainant did not complain to her mother in the appellant’s presence does not assist the appellant. Thirdly, the appellant or his counsel at the trial ought to have raised the issue after the summing up for a re-direction. The ground has no merit and is dismissed.
[42] Ground 9: This ground asserts that the learned trial judge erred in law and in fact in finding the appellant guilty of the charges. Further, it is alleged that the trial judge contradicted himself in summing-up at paragraph 25. In the order of things, the summing-up precedes the judgment. It states:
“25. The PW1 K.R. is the sole witness of the above incident, for the prosecution. The law requires no corroboration. Therefore, you can act on the evidence of a sole witness. However, my direction is that if you are to rely on a sole witnesses’ evidence you must be extremely cautious of the credibility and dependability of such evidence..........’’
[43] The appellant also alleges that despite the above directions the 3 assessors found the appellant not guilty and the learned trial judge by overturning their unanimous opinion of not guilty and without giving cogent reasons had caused a substantial miscarriage of justice. The appellant’s written submission states:
“We submit with respect that the learned trial judge took into consideration that PW1 was the prosecutions sole witness of the alleged incident and that her evidence in court could be relied on and not taking into consideration the evidences by the defence witnesses including the appellant.”
[44] The appellant did not mention that the direction in paragraph 25 of the summing-up, is fully reflected in paragraph 6 of the judgment of the learned trial judge. There is no contradiction in the summing -up and the judgment. The learned trial judge, as discussed in relation to Ground 4 above, had given cogent reasons for his decision which had overturned the unanimous opinion of the assessors. There is no error in law or in fact. The summing- up and judgment, taken as a whole, had dealt adequately with the evidence of both the complainant (prosecution) and that of the accused, and the judge did not confine himself to a consideration of PW1’s evidence solely. Ground 9 is not arguable, and is dismissed.
[45] Ground 10: The ground alleges that the burden of proof was shifted and the onus was placed on the accused when the trial judge stated that “...accused had failed to create reasonable doubt in the prosecution case.” In context, the learned judge in paragraph 11 of judgment was considering the evidence of the accused and that of his witness Munesh Reddy to determine whether the defence managed to create a reasonable doubt in the prosecution case. Trial judge had not shifted the burden of proof as argued by the appellant. Having concluded at end of paragraph 10 that the prosecution had established and proven the charges beyond reasonable doubt, the trial judge had asked himself the question whether the defence had managed to create a reasonable doubt and answered it in the negative in paragraph 11. Ground 10 is not arguable and is dismissed.
Conclusion
[46] For the above reasons, the application for renewal of grounds for leave to appeal against conviction is refused. There is no miscarriage of justice caused by such refusal. In the course of determining the leave application, I have also considered the merits of the appeal in the result that the appeal against conviction is refused. Conviction is affirmed.
Dobson, JA
[47] I agree with the judgment of Qetaki JA.
Order of Court
Hon. Justice Isikeli Mataitoga
RESIDENT JUSTICE OF APPEAL
Hon. Justice Alipate Qetaki
JUSTICE OF APPEAL
Hon. Justice Robert Dobson
JUSTICE OF APPEAL
Solicitors:
Iqbal Khan & Associates for the Appellant
Director of Public Prosecutions for the Respondent
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