Kumar v The State [2024] FJCA 157; AAU108.2023 (1 August 2024)

IN THE COURT OF APPEAL, FIJI
Appellate Jurisdiction

CRIMINAL APPEAL NO. AAU 108 OF 2023

BETWEEN:
KUSHAL KUNAL KUMAR
Appellant

AND:
THE STATE
Respondent

Coram: Mataitoga, RJA

Counsel: A.K. Singh for Appellant
Latu, L for the Respondent

Date of Hearing: 18 July 2024
Date of Ruling: 1 August 2024

RULING

1. The appellant (Kushal Kunal Kumar) was charged with one count of Rape by the Director of Public Prosecution. The detail of the charge was as follows:
   

Statement of Offence

RAPE: Contrary to section 2017(1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence

KUSHAL KUNAL KUMAR on 29 January 2022, at Vunika, Labasa in the Northern Division, had carnal knowledge of RAMISHA DEVI with her consent.

2. At the start of the trial on 6 November 2022, the appellant was asked whether he understood the charge against him and he confirmed that he understood it. He pleaded not guilty. On the same day the trial started.
   
3. At the trial the Respondent called eight witnesses including the victim. At the end of the prosecution case, the trial judge acting under section 231 of the Criminal Procedure Act 2009, held that there was a case to answer and called on the Appellant for his defense. For the defense, the appellant gave evidence and one other witness was called on his behalf.
   
4. The trial judge found the charge against the Appellant proven beyond reasonable doubt, found him guilty and convicted him in a judgement delivered on 16 November 2023. In a ruling dated 28 November 2023, the Appellant was sentenced to 11 years 10 months imprisonment with a non-parole period of 11 years under section 18(1) of the Sentencing and Penalties Act 2009.
   

Appeal

5. The Appellant through counsel filed a timely appeal on 20 December 2023 against conviction and sentence. The Notice and Grounds of appeal set out eleven grounds against conviction and one ground against sentence. In addition, there was a Notice of Motion to adduce further evidence.
   

Further Evidence

6. The Notice of Motion filed was supported with an Affidavit sworn by the appellant’s mother, covering the contents of a telephone conversations she overheard between her husband [appellant’s father] and the appellant’s lawyer. The contents of this conversation are what is being sought to be adduced as further fresh evidence. Under section 28(2) of the Court of Appeal Act this application cannot be granted by the Justice of Appeal sitting alone, it is a mater for the full court. In this instance the so-called further evidence is inadmissible per se because it is hearsay; secondly it is not fresh evidence and thirdly, the evidence would have been available at the time of trial with due diligence.
   

7. As was observed by the Court of Appeal in Reddy v State^[1]

“16] It is necessary, first, to consider the appellant’s application for leave to adduce fresh evidence. This Court may accept fresh evidence if it thinks it necessary or expedient in the interests of justice. It is well settled that an applicant for leave to adduce fresh evidence on appeal must satisfy the appellate court that the evidence sought to be admitted is “fresh” (that is, could not with reasonable diligence have been obtained before the trial), is cogent (that is, could have had a substantial influence on the outcome of the trial), and is apparently credible.”

8. The application for adducing further evidence will need to be undertaken following the procedures and processes of the court.
   

Substantive Grounds of Appeal

9. The following grounds were submitted by counsel for the appellant and filed in the court on 11 March 2024. In this submission the following grounds are stated:
   

Against Conviction: five grounds

(i) The trial judge erred in law and fact, resulting in miscarriage of justice, in that he did not address the issue of consent raised by the evidence, even if counsel for the appellant did not argue the same in the trial; [paragraph 26 of judgement]

(ii) Trial judge erred in law and fact when he dis-directed himself that ‘the complaint of the victim of a forceful sexual conduct has been corroborated by the medical evidence of PW6[Dr Nasila] and the medical report PEX 2; [paragraph 20 of judgement]

(iii) Trial judge erred in law and fact in misdirecting himself regarding inconsistent, omission and contradiction of prosecution witnesses’ evidence that went to the root of the offence, resulting in an unsafe judgment; [paragraph 19 of judgement].

(iv) Trial judge failed to fairly consider the totality of the evidence before deciding that the appellant was guilty. There eight references made to certain aspects of the evidence, which is not clear on the judgement;

(v) Trial judge erred in law and fact in holding that the prosecution witnesses were credible without reasons for such conclusion

Against Sentence – one ground

(i) The trial judge erred in law and fact when he acted upon a wrong principle; allowed extraneous matters to guide his decisions and failed to consider the principle of rehabilitation

Relevant law

10. Given the nature of the grounds submitted by the appellant, which allege error of law and fact, leave to appeal is required pursuant to section 21(1)(b) of the Court of Appeal Act 2009.

11. In Singh v State^[2] 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:

‘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).

[13] 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.

12. I acknowledge the submission filed by Ms. L Latu for the respondent, which was useful in contextualizing the issues raised by the grounds of appeal in this leave appeal hearing.
    

Assessment

13. Grounds i), ii) and iii) set out in paragraph 9 above raise important points of law and facts, namely, the appellant had argued his case at the trial on the basis of denial of sexual intercourse with the complainant. In the course of the trial, defense evidence adduced raise issue of ‘çonsent”, is the trial judge required by law to address this issue and ensure that the prosecution case on this element of the offence was proven beyond reasonable doubt.
    
14. In this case the defence raised the following issues in evidence at the trial: delayed complaint, inconsistent statement by the complainant and a medical report that may prove sexual intercourse may have taken place, but not that it was without consent. All these factors are critical in determining the credibility of the complainant, which the trial judge appear to accept without a fair and impartial assessment of all the evidence. There is scant reference in the judgement to the defense evidence, but a ready acceptance of the victims’ evidence on the issues of consent.
    
15. The trial judge at paragraph 17 observed in reference to the evidence of the victim:

“Observing this demeanor and deportment in this court, this court is impressed with her testimony and this court has no reason to disbelieve this witness.”

16. The court did not elaborate on the testimony that impressed it, at least in the judgement. It may be identifiable from the court record of the trial. Following the recent Court of Appeal judgement in Dauvucu v State^[3], trial judges need to move away from relying on witnesses” demeanor and deportment as the basis of accepting the credibility of evidence. There has to be a reasoned basis for accepting prosecution evidence, especially that of the complainant over the defense evidence, on issues critical to the case such as consent, in a rape case beyond that you [trial judge] liked the demeanor and deportment of the complainant when giving evidence.
17. Counsel for the respondent submits that paragraph 26 of the judgement was correct in law. There is some difficulty in accepting this submission from the prosecution standpoint. If that were so, it does not answer the outstanding issue of consent, which the prosecution must prove beyond reasonable doubt from the evidence at the trial. Even if the defence did not raise consent, the prosecution must still prove it beyond reasonable doubt because it is an element of the offence it has charged the appellant with. The burden remains with the prosecution.
18. In Saudromo v State^[4], the Court of Appeal at paragraph 33 of that judgement stated:

[33] The above shows that the trial judge had no doubt in his mind “that the complainant told the truth because her demeanour was consistent with her honesty. What was the basis for making this determination? None was stated by the trial judge. It resulted in his unfairly assessing the evidence in this case by simply overlooking the inconsistencies in complainant evidence on the basis that he believed her as credible. Often truthfulness and demeanour of a witness are not the best basis to accept once evidence, because many witnesses are firm in their demeanour but are liars. It begs the question to make that kind of assessment without clear basis on the evidence. In the Court of Appeal of Alberta (Canada) Mr. Justice Anderson in R v McKay (2011) Alta 314 observed that: ‘skilled liars can present very well.”

19. This ground should go forward to the full court because of the need to consider consent evidence from the full court records. This ground has reasonable prospect of success.
20. Grounds (iv) and (v) set out paragraph 9 above, cannot be fairly assessed at this stage of the appeal process. However, if it is renewed in the Court of Appeal and with the benefit of the full court record, a fair and accurate assessment can be made and a determination reached.

Sentence Appeal

21. After carefully reviewing the sentence ruling in this case, there is no error in the principles the court used, in sentencing the appellant. Aitchenson v State^[5] is the right case law authority for sentence tariff for rape of children below the age 18 years. In choosing the lowest number of years in the tariff band it was correct. It avoided the trap of double-counting on the aggravating factors. In terms of the guideline provided by the court of appeal in Koroivuki v State^[6] the ultimate sentence is within the permissible range.
    
21. The appeal against sentence has prospect of success. Leave to appeal sentence is refused.
    

ORDERS:

1. Leave to appeal against conviction for ground discussed above, is allowed.
2. Leave to appeal against sentence is refused.
3. Application to adduce further evidence to be renewed to the Court of Appeal under section 28(2) of the Court of Appeal Act 2009.
   

Isikeli U Mataitoga

RESIDENT JUSTICE OF APPEAL

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^[1] [2024] FJCA 38 (AAU 119/2019)
^[2] [2024] FJCA 16 (AAU 51of 2023)
^[3] [2024] FJCA 108 [AAU 152 of 20222]
^[4] [2024] FJCA 45 (AAU 019 of 2019)
^[5] [2018] FJSC 29 (2 November 2018)
^[6] [2006] FJSC 5, (CAV 006 0f 2005)