PacLII Home | Databases | WorldLII | Search | Feedback

Court of Appeal of Fiji
You are here:  PacLII >> Databases >> Court of Appeal of Fiji >> 2024 >> [2024] FJCA 153

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Naidu v The State [2024] FJCA 153; AAU089.2023, AAU084.2023 (1 August 2024)

IN THE COURT OF APPEAL, FIJI
Appellate Jurisdiction


CRIMINAL APPEAL NO. AAU 089 OF 2023
CRIMINAL APPEAL NO. AAU 084 OF 2023


BETWEEN:
KRISHNEEL KAUSHAL NAIDU
Appellant 1


KARTIK KUMAR
Appellant 2


AND:
THE STATE
Respondent


Coram: Mataitoga, RJA

Counsel: Mr. Heritage S. for First Appellant
Mr. Reddy J & Mr. Kumar for Second Appellant
Mr. U Lal & Mr. Singh A for Respondent


Date of Hearing: 25 June 2024
Date of Ruling: 1 August 2024


RULING

  1. Krishneel Naidu [First Appellant] and Kartik Kumar [Second Appellant] were work-mates. They were tried together in the High Court at Lautoka with the following charges:

FIRST COUNT

Statement of Offence (a)

ABDUCTION OF YOUNG PERSONS: contrary to section 285 of the Crimes Act, 2009.


Particulars of Offence (b)

KRISHNEEL KAUSHAL NAIDU AND KARTIK KUMAR, on the 18th day of March, 2020, at Malau, Rakiraki in the Western Division, unlawfully took “N.N”, being under the age 18 years, out of the possession and against the will of her mother.

SECOND COUNT

Statement of Offence (a)

RAPE: contrary to section 207 (1) and (2) (a) of the Crimes Act, 2009.


Particulars of Offence (b)

KRISHNEEL KAUSHAL NAIDU, on the 18th day of March, 2020, at Malau, Rakiraki in the Western Division, had carnal knowledge of “N.N” without her consent.

THIRD COUNT

Statement of Offence (a)

RAPE: contrary to section 207(1) and (2) (a) of the Crimes Act, 2009.

Particulars of Offence (b)

KRISHNEEL KAUSHAL NAIDU, on the 18th day of March, 2020, at Malau, Rakiraki in the Western Division, on an occasion different from count two, had carnal knowledge of “N.N” without her consent.

FOURTH COUNT

Statement of Offence (a)

RAPE: contrary to section 207 (1) and (2) (a) of the Crimes Act, 2009.

Particulars of Offence (b)

KRISHNEEL KAUSHAL NAIDU, on the 18th day of March, 2020, at Malau, Rakiraki in the Western Division, on in occasion different from count three, had carnal knowledge of “N.N” without her consent.

FIFTH COUNT

Statement of Offence (a)

RAPE: contrary to section 207 (1) and (2) (a) of the Crimes Act, 2009.


Particulars of Offence (b)

KARTIK KUMAR, on the 18th day of March, 2020, at Malau, Rakiraki in the Western Division, had carnal knowledge of “N.N” without her consent.

SIXTH COUNT

Statement of Offence (a)

RAPE: contrary to section 207 (1) and (2) (a) of the Crimes Act, 2009.

Particulars of Offence (b)

KARTIK KUMAR, on the 18th day of March, 2020, at Malau, Rakiraki in the Western Division, on an occasion different from count five, had carnal knowledge of “N.N” without her consent.


  1. At the trial, the prosecution called four witnesses and after the prosecution closed its case, the court ruled that both the accused persons had a case to answer in respect of count one abduction of young persons. The first accused for lesser offence of defilement in count two and for rape in count three. The second accused for rape in counts five and six as charged.
  2. The appellants were found guilty and convicted by the trial judge in the judgement dated 21 September 2023[1], in the following manner:
    1. In view of the above:
      1. I find both the accused persons guilty of one count of abduction of young persons as per the first count;
    1. I find the first accused guilty for the lesser offence of defilement of any person being of or above the age of 13 years and under the age of 16 years as per the second count;
  1. I find the first accused guilty for the offence of rape as per the third count; and
    1. I find the second accused guilty for two counts of rape as per counts five and six.
  1. Both the accused persons are convicted accordingly. In respect of the second and fourth count of rape the first accused is acquitted due to lack of evidence.
  2. Both appellants were sentenced on 12 October 2023[2] as follows:
    1. Considering the above, I impose 14 years as a non-parole period to be served before the accused persons are eligible for parole. I consider this non-parole period to be appropriate in the rehabilitation of both the accused persons and also meet the expectations of the community which is just in the circumstances of this case.
    2. In summary, I pass an aggregate sentence of 16 years and 5 months with a non-parole period of 14 years to be served by both the accused persons before they are eligible for parole.

26. 30 days to appeal to the Court of Appeal.


Leave to Appeal

  1. Both appellants appeal against conviction and sentence.
  2. The First Appellant Krishneel Naidu through counsel submitted ten grounds of appeal against conviction and four grounds of appeal against sentence. These grounds are clearly articulated in the First Appellant’s Notice of Appeal and Application to Appeal Against Conviction filed in court on 8 November 2023. It is not reproduced here because not all were raised at the hearing. This is an untimely appeal being an appeal against a judgement that was delivered on 21 September 2023.
  3. The second appellant Kartik Kumar submitted eight grounds of appeal against conviction and one ground of appeal against sentence, namely, the sentence is harsh and excessive. The Notice and Grounds of Appeal was filed on 31 October 2023. This is an untimely appeal also.
  4. Both appeals were filed within 3 months period after the due dates for leave to appeal. I will adopt the Juliene Miller v State[3] approach that if the delay is within three months a

Hearing and the relevant law

  1. Based on the grounds of appeal submitted by both appellants, this leave to appeal was made under section 21 (1) (b) of the Court of Appeal Act.
  2. In Singh v State[4] the guiding principle is stated thus:

“12] For leave to be granted, the appellant must convince the court that all or any of the grounds submitted in support of the leave application have a reasonable prospect of success: Caucau v The State [2018] FJCA 171. The Court in Sadrugu v State [2019] FJCA 87, adopted the approach enunciated in S v Smith [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) (para 7) wherein Supreme Court of Appeal of South Africa, addressing whether leave to appeal by the high court should have been granted or not, stated the following:

13]‘What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal. (emphasis added)

[14] Therefore, I use the test of reasonable prospect of success as described in Smith, (supra) to evaluate the grounds submitted by the appellant in support of his Leave Application.


Grounds of Appeal


  1. First Appellant Krishneel Naidu through his counsel at the hearing made the following submissions:
    1. That there were inconsistent statements made by the complainant that go to the core issue of consent in the charges that the appellant is charged with. When giving her statement to the police a few days after the incident she said that she consented to the sexual intercourse. Three years later in court, the complainant said she did not consent.
    2. The lack proper analysis of the medical evidence given the crucial role it has in the context of this case. Firstly, the report was explained by another medical officer who was not the examiner of the victim. Second the finding in the report is ambiguous towards the nature of the sexual penetration alleged – is it the vagina or the anus of the complainant that was penetrated or both.
    3. Consent of the complainant was not adequately covered by the trial judge so as to prove beyond reasonable this element of the charge, given that the complainant by her own evidence gave consent to having sex with First Appellant on one occasion but not another occasion.
    4. The trial judge did not address the issue of penetration in assessing the evidence. The sexual activity that took place between the appellant and the complainant was not denied but apart from consent, the issue of penetration was not reviewed with due diligence by the trial judge to be able to fairly conclude that it was proven beyond reasonable doubt.
  2. The Second Appellant Kartik Kumar submits the following submissions:
    1. The trial judge erred in law and fact when he failed to consider the fact that no proof of the complainant’s age before or during the alleged offence was known to the appellant;
    2. The trial judge erred in law and fact that it was the complainant who sneaked out of her house and took risk by walking through rugged terrain to meet the appellant and his accomplice and this was the first time for them to meet;
    3. The trial judge erred in law and fact when he failed to consider that the sexual intercourse between the complainant and the appellant consensual after he was invited by the complainant upon paying $100 for her services;
    4. The trial judge erred in law and fact when he failed to consider the fact the appellant was forthright and honest in his testimony.

Assessment of the Grounds of Appeal

Krishneel Naidu – Frist Appellant

  1. For the appellant Krishneel Naidu, the four grounds urged before the court all pertains to the issue of consent of the complainant to the four incidents of sexual intercourse with the complainant. It will be assessed together as one ground and before I do that, I set out fully the passages from the judgement on consent:

127. Furthermore, the prosecution alleges that when the car was stopped near Dugapatu Temple Krishneel had sexual intercourse with the complainant in full view of Kartik. The car was driven further to an isolated place near the bushes whereby Krishneel left the car to answer his mobile phone. The complainant was still naked in the back seat when Kartik seeing the complainant alone came and forcefully had sexual intercourse with the complainant.


128. The complainant did not like what Kartik was doing and she told Kartik to stop but he did not. The complainant did not consent to have sex with Kartik. When Kartik left Krishneel came to the back seat. The car was driven to another isolated place where houses were far away on the left side of the road where the car was parked.


129. Here Krishneel had forceful sexual intercourse with the complainant. The complainant did not want to have sex with Krishneel on this occasion and she was continuously telling Krishneel to stop but he did not. The complainant was yelling Krishneel told the complainant to yell as much as she wants.


  1. After Krishneel finished, Kartik came on top of the complainant and had forceful sexual intercourse with her, at this time she was feeling like she will faint since by this time the sexual intercourse on her by the two accused persons were four times. Kartik held her hand when he had sex with her, after he finished he went outside. The complainant did not consent for Kartik to have sex with her the second time.
    1. ........
  2. The complainant was medically examined a few hours later and the examining doctor had observed extensive bruises on her neck and breast, and upon vaginal examination dried blood was seen around the vaginal area as a result of forced penetration
  3. On the other hand, both the accused persons say the allegations raised by the complainant are lies and a made-up story. The defence is asking this court to look at the evidence objectively. In respect of count one both accused persons did not do anything wrong.
  4. The complainant sneaked out of her home and took the risk by walking for 15 minutes past the rugged terrain to meet Krishneel. The accused persons did not know the complainant’s mother or the age of the complainant. The complainant in any event ha told Krishneel that she was 19 years of age and her appearance matched a 19-year-old since she looked older and mature.
  5. It is not in dispute that there was sexual intercourse with the complainant with the first appellant which the trial judge found to be with the her consent: paragraph 26 of judgement.
  6. At paragraph 32 prosecution evidence is that the first appellant [Krishneel Naidu] had sexual intercourse the second time and that she told him to stop. The evidence does not make it clear, at least from the summary in the judgement, whether the stop order from the complainant was made only after the sexual intercourse had become painful. The evidence is unclear whether consent was refused before the sexual act charged in count 3 started or after the sexual act had started and consent withdrawn at the point it became painful to the complainant.
  7. At paragraph 34 of the prosecution evidence is clear that despite being told to stop, appellant continued. This is evidence of rape on the second occasion by the first appellant; but at paragraph 42, the complainant evidence is even confusing when she said that she would have liked to have sex with the first appellant only and on the night in question she sneaked out of her mother’s house to have sex with first appellant. In that context, the issue of consent even on count three (3) against the first appellant may not have been clearly established from the evidence. This may need to be further explored when the full record of the trial is available to the full court.
  8. I therefore would allow this specific point of law and facts to go to the full court for fuller evaluation with the availability of the full court record at the trial.
  9. On the issue of penetration and its relevance, whether it was in the vagina or anus escapes me because the acts of sexual intercourse which is the subject matter of the rape charges in counts 2, 3 and 4 against Krishneel Naidu [First Appellant] and in counts 5 and 6 against Kartik Kumar [Second Appellant] is not disputed. However, both appellants claim that sexual intercourse was consensual. It took place but with the consent of the complainant.
    1. The judgement does not really provide the basis upon which the trial judge “had no doubt in his mind that the complainant told the truth. Her demeanor was consistent with her honesty. I also accept that the injuries seen around the vagina of the complainant were consistent with forceful trauma.” The issue of forceful trauma is a dramatic reference not backed up by any evidence.
    2. In a case such as this where the facts are closely contested by appellants and the complainant on issues that are essential to establishing the charges brought against the appellants, relying on the demeanor of the complainant is insufficient in law as the basis for accepting the evidence of the complainant. There needs to be logical reasoning that can be subjectively assessed on issue of credibility of critical witnesses.
    3. This practice of trial judges relying on the demeanor of witness as the basis of finding their evidence credible is not a lawful use of judicial discretion. In Dauvucu v State[5] the Court of Appeal stated:

“[14] Primary reliance on demeanour is a cause for concern. Substantial research in numerous jurisdictions has found that demeanour is not a reliable indication of the truthfulness of a witness. For instance, in New Zealand jurisprudence reflecting the position there and in England, the topic has been considered in the following terms:


[23] It is trite that our criminal justice system depends essentially on oral testimony. The jury plays a critical part as the sole judge of all factual issues arising in a trial. A critical part of that task is the assessment of the credibility and reliability of witnesses. This can be a difficult task and it is therefore vital that any directions given by Judges on these topics should be carefully considered and adapted as necessary in the light of any soundly-based research on this topic.

[24] We start our discussion by a consideration of what constitutes demeanour. Writing extra-judicially, Lord Bingham has described demeanour as:

... [the witness’s] conduct, manner, bearing, behaviour, delivery, inflexion; in short, anything which characterises (the witness’s] mode of giving evidence but does not appear in a transcript of what [the witness] actually said.

[25] We add that demeanour also includes the personality or character of a witness. Given the breadth of what may be embraced by the concept of demeanour, we do not think it helpful to speak of “body language” as some traditional jury directions have done.

[26] Lord Bingham went on to refer to passages from observations made by three experienced trial judges. We will refer to two of them. First, Lord Devlin has said:

The great virtue of the English trial is usually said to be the opportunity it gives to the judge to tell from the demeanour of the witness whether or not he is telling the truth. I think that this is overrated. It is the tableau that constitutes the big advantage, the text with illustrations, rather than the demeanour of a particular witness.

[27] Second, the observations of Mr Justice MacKenna:

I question whether the respect given to our findings of fact based on the demeanour of the witness is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness’s demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is it the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground, perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help.

[28] Lord Bingham went on to refer to the additional difficulties of assessing credibility of a witness giving evidence through an interpreter. He concluded:

To rely on demeanour is in most cases to attach importance to deviations from a norm when there is in truth no norm.’


  1. On the basis of the above authority and Saudromo v State[7], the assessment of the evidence in this trial in some of the critical areas was inadequate. It seems as if the court was being unfair in approaching the evidence led by the appellants.
  2. I will grant leave to allow this ground to be reviewed by the full court.

Case of Kartik Kumar – Second Appellant


  1. For the Kartik Kumar, [Second appellant] the case for this appellant is summarized by the trial judge from paragraphs 96 to 118 of the Judgement.
  2. I address issues which are core to the grounds of appeal for this appellant:
    1. This appellant claim consent, for his sexual intercourse with the complainant.
    2. He paid $100 to complainant to have sex with her.
    3. Complainant was a willing partner and came to meet both appellants on her own freewill after sneaking out from her mother’s place to meet them at night.
    4. The complainant had told appellant 1 Krishneel Naidu that she was 19 years old – a lie.
  3. As regards ground one of appeal by second appellant, the count relating to abduction would only have been established beyond reasonable doubt if the appellants unlawfully took the complainant out of the possession of the mother. The accepted facts in this case are that the complainant came to meet first appellant on her own freewill, not unlawfully taken out of the possession of her mother. Both appellant’s waited for the complainant at a junction of the road, some distance from where she resides.
  4. In this regard paragraphs 25, 26, and 136 of the judgement are relevant, which established that the complainant was not taken out of her mother’s possession. She came to meet the appellants at a place, which required her to walk by herself in the dark through shrubs to a junction she had previously arranged with the appellant Krishneel Naidu to pick her up from. This charge was an abuse of the prosecution power because the facts that were to be adduced in evidences, we inadequate to prove such a charge. This should have been obvious at the time of the decision to charge were under review before it was laid.
  5. I would allow this ground to go on appeal to the full court for review.
  6. Regarding ground 3 of Kartik Kumar that he had consensual sex with the complainant after she asked for payment of $100.00. At paragraph 138 of the judgement, the trial judge referred to the complainant asking the Kartik Kumar to enjoy with her for $100.00 payment. But he did not see that as relevant in determining the issue of consent in the rape charges against the appellants and Kartik Kumar in particular.
  7. Whether the payment of the $100.00 was made or not, should have been examined in detail by the trial judge then he did in this case, because it goes to the issue of consent in the rape charged against the appellants. This failure or not would be fully assessed once the records of the trial are available for the hearing.
  8. I grant leave to appeal on this ground.
  9. After a brief assessment the grounds submitted by the appellants and the evidence as discussed in the judgement and the sentence ruling, I have concluded that some of the grounds should be allowed to go the full court for review.

Appeal Against Sentence

  1. Both appellants appeal against their sentence as harsh and excessive. The grounds submitted by Krishneel Kumar is generic in nature and not substantiated. In the case of Kartik Kumar there are no articulation of why his sentence is harsh and excessive.
  2. In reviewing the sentence, the light of the guidelines in Kim Nam Bae v State[8] I am satisfied that the sentence has not violated any of the relevant principles for sentencing.

It correctly used the Aitcheson v State[9] for sentence tariff for rape of a young person.


  1. In the totality of the evidence the sentence is justifiable.

ORDERS:

  1. Leave to appeal is granted for the grounds submitted by the appellant Krishneel Naidu and discussed above.
  2. Leave is granted for grounds three and four submitted by Kartik Kumar – second appellant
  3. Leave to appeal against sentence for both appellant is refused.

Isikeli U Mataitoga
RESIDENT JUSTICE OF APPEAL

[1] State v Naidu & Kumar [2023] FJHC 683 [HAC 074 of 2020]
[2] State v Naidu [2023] FJHC 751 [HAC 074 of 2020]
[3]
[4] [2024] FJCA 16 (AAU 51of 2023)
[5] [2024] FJCA 108 (AAU 0152 of 2019)
[6] [2013] NZCA 678
[7] [2024] FJCA 45 (AAU 019 of 2019)
[8] [1999] FJCA 21 (AAU 015 of 1998)
[9] [2018] FJSC 29, (CAV 0012 of 2018)

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJCA/2024/153.html