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

CRIMINAL  APPEAL NO. AAU 0046 OF 2023
[Lautoka High Court: HAC of 4 of 2020]

BETWEEN:

NOUMAN  PATEL
Appellant

AND:

THE  STATE
Respondent

Coram: 		Mataitoga, P

Counsel	:	Singh A.J. for the Appellant
			Uce R for the Respondent 

Date of Hearing:	4 December, 2024
Date of Ruling	:	18 February 2025

RULING

1.	The appellant [Nouman Patel] was charged for one count of Rape. The information filed by the DPP states:

Statement of Offence

RAPE: Contrary to section 207(1) and (2) (a) and (3) of the Crimes Act 2009.

Particulars of Offence

NOUMAN PATEL on the 2nd day of January, 2020, at Nadi in the Western Division penetrated the anus of “A.A”, a child under the age of 13 years, with his penis.

2.	At the trial, in the Lautoka High Court the appellant pleaded not guilty. The prosecution called 3 witnesses to give evidence and closed it case. The court determined that there was a case to answer. The appellant was put to his defence. 

3.	The court explained to the appellant the options available to him in preparing his defence. He decided to give evidence himself.

4.	Following the trial, the appellant was found not guilty as charged on the Rape charge, but guilty of Attempt to Commit Rape and was convicted accordingly on 8 May 2023.

5.	On 25 May 2023, the appellant was sentenced to 5 years 4 months and 25 days imprisonment with a non-parole period 4 years imprisonment.

The Appeal

6.	The appellant through counsel [Iqbal Khan & Associates] filed a Notice of Appeal and Application for Leave to Appeal Against Conviction dated 30 May 2023 pursuant to section 21(1) (b) Court of Appeal Act 2009. The Application for Leave to Appeal sets out 10 grounds of Appeal against conviction.

7.	The application was timely.

8.	Following a change in counsel for the Appellant, an Amended Notice of Appeal and Application for Leave to Appeal against Conviction and sentence was filed in the Court Registry on 9 April 2024. This Amended Application has 6 grounds of appeal against conviction and 1 ground against sentence.

Grounds of Appeal 
Against Conviction 
 
9.	The appeal grounds claim that there was miscarriage of justice against the appellant at his trial for the reasons set out below which were submitted as separate grounds of appeal:

i)	Lack of identification evidence and reliance on dock identification in the absence of a prior lineup or photo identification;

ii)	Rejection of the alibi evidence in the absence prosecution rebuttal witnesses or surveillance or forensic evidence placing the appellant at the crime scene;

iii)	Medical evidence – inconclusive and contrary to the complainant’s version of the incident;

iv)	In consistencies in the prosecution case were significant and relevant t the issues contested at the trial;
v)	Standard of proof beyond reasonable doubt not satisfied on the evidence in this case and trial judge’s reference in paragraph 175 of the judgement that the defence has not been able to create a doubt in the prosecution case. This appears to be reversing the onus by requiring the appellant to prove his innocence beyond reasonable doubt.

vi)	Failure to conduct competency inquiry under section 10(1) of the Juvenile Act before a child may give evidence under oath at the trial judge.  

Applicable Law

10.	The ground of appeal submitted by the appellant involves questions of law and fact. Section 21 (1)(b) of the Court of Appeal Act 2009 requires leave of the court to be granted before appeal may proceed further. 

11.	For a timely appeal, the test for leave to appeal against conviction is ‘reasonable prospect of success’ see: Caucau v State [2018] FJCA 171; Navuki v State [2018] FJCA 172 and State v Vakarau [2018] FJCA 173; and Sadrugu v The State [2019] FJCA 87.

Assessment of Grounds of Appeal

12.	The appellant’s submission is that there was miscarriage of justice, in his trial due to the 6 reasons he submits as grounds of appeal.

Identification Evidence

13.	Was there miscarriage of justice, as claimed by the appellant that the trial judge erred in law and fact in his assessment of the identification evidence by the complainant. The complainant’s evidence on the appellant’s identification is set out in paragraph 35 to 37 of the judgement thus:

“35. At this time the complainant told his father that he had held a person’s penis in his hands and this person had penetrated the complainant’s anus with his penis. The complainant further told his father that he had seen the perpetrator with the Maulana (Islamic Priest) and this person came to the mosque every day. After this, the complainant’s father went and spoke with the Maulana, thereafter the complainant with his father went to the police station and together with the police the complainant and his father again went to the house of the Maulana. The complainant also stated that the alleged perpetrator was wearing a blue Jhuba.

36. 	After the complainant and his father with the police officers arrived at the house of the accused the Maulana called the accused, when the complainant saw the accused he started crying since this was the same person who had done those dirty things to him. The complainant pointed to the accused in the presence of his father, the accused, police officers and the accused family. Furthermore, the complainant has seen the accused on many occasions coming to the mosque with the Maulana. The complainant was taken to the hospital for medical examination the same day, he recognized the accused in court and described him as a person who has some holes/marks on his face, tall with little beard.”

14.	Furthermore, in paragraphs 141 to 147, the trial judge was sensitive to the need for Turnbull Direction and addressed the evidence accordingly:

141.	“The defence has taken the position that the complainant made a mistake in thinking that it was the accused who had sexually assaulted the complainant for someone else so he had identified the wrong person in court.

142.	This case against the accused in some respect depends on the correctness of the identification of the accused which the defence alleges to be mistaken. I have therefore taken special care on the evidence of identification because it is possible that an honest witness can make a mistaken identification. An apparently convincing witness can be mistaken and so can a number of such witnesses. I wish to also remind myself that mistakes in recognition, even of close friends and relatives, are sometimes made.

143.	I have carefully looked at the following circumstances in which the identification by the complainant was made in the washroom:

How long did he have the person he says was the accused under observation?
According to the complainant he had been with this person in the washroom for more than 5 minutes.
At what distance?
This person was touching the complainant so very close to each other.
In what light?
According to the complainant the alleged incident happened in the washroom and no issues were taken by any counsel that it was not day time or about the lighting.
Did anything interfere with that observation?

The complainant did not say there was any obstruction or interference he was able to see the face of this person clearly which prompted him to describe this person.
Had the witness ever seen the accused before?

The complainant said he had seen his person at the mosque, with the Maulana and going into and out of the mosque quarters on many occasions before the alleged incident.

144.	I must remind myself of the following specific weaknesses which appeared in the identification/recognition evidence of the complainant. The complainant did not elaborate about what he meant by the person having holes in his face and what type of holes were there.

145.	I have given the above directions as a matter of caution after the defence had raised the issue of identification of the accused in the circumstances narrated by the complainant.

146.	Finally, I would like to state that the complainant did not make any mistake in recognizing the accused since he has seen the accused on previous occasions at the mosque and in the washroom he had seen the accused from close range. The complainant later in the day also saw the accused at the accused house and the complainant had recognised the accused as the alleged perpetrator.

147.	In view of the above, this court accepts that it was the accused and no one else there is no mistake made by the complainant in the recognition of the accused.”

15.	There was no miscarriage of justice as regards the claim relating to identification evidence. There is no merit to this claim.

Alibi Evidence

16.	As regards the alibi evidence raised by the appellant, he was at home sleeping at the time of the offence. It was clearly rebutted by the direct evidence of the complainant, who saw him and was strong in his evidence at the trial that the appellant was the person that sexually abused him. 
  
17.	The trial Judge analyzed the issue of alibi from paragraph 114 to 118 of the judgement. After having considered this claim in light of the evidence the trial judge at paragraphs 172 to 174 concluded:

“172. I accept the evidence of all the prosecution witnesses as reliable and credible that it was the accused who had attempted to penetrate the anus of the complainant with his penis.

173. On the other hand, the accused did not tell the truth he gave a version of events which is not tenable or plausible on the totality of the evidence. I reject the defence assertion that the accused had not done anything to the complainant as unworthy of belief. The demeanour of the accused was not consistent with his honesty he did not tell the truth when he said he did not do anything to the complainant because he was sleeping at home after coming home from night shift. I do not give any weight to his evidence in this regard.

174. I also do not accept that the allegation was made up by the complainant to falsely implicate the accused. On a review of the entire evidence before this court particularly the defence of alibi raised and the evidence of the accused I rule that the prosecution which has the burden to disprove the defence of alibi raised has been able to rebut the defence of alibi raised beyond reasonable doubt.

18.	The claim of miscarriage of justice due to alibi evidence has no merit.

Inconclusive Medical Evidence

19.	The appellant submission is confused to say the least. It starts with a claim that the medical evidence was inconclusive but does not clarify what aspects of the medical evidence was inconclusive and how it affects the evidence against the appellant. Later there was reference to the complainant’s statement that some liquid was applied to his back, but the medical evidence did not establish this. 

20.	This is followed by the claim that no forensic evidence to prove the crime was committed by the appellant. By reference to washroom, no finger print, no hair samples were gathered from the washroom. 

21.	From the above the appellant would like the court to draw the conclusion there were inconsistent statement made, which resulted in the finding being unreliable. There is no inconsistent evidence of the complainant specified by the appellant in his submission. He made supposition based on what might have been seen in the washroom in terms of finger print or hair samples. None of these affected the clear identification evidence of the complainant that the appellant was the person that sexually assaulted him.

22.	During cross-examination by counsel for appellant, submitted that there were some inconsistencies identified in the complainant’s evidence and that of his father, and these are at paragraphs 37, 39, 40, 42 50, 70, and 73 of the judgement. 

23.	The trial judge observed as follows at paragraphs 79-82 of the judgement:

“79. 	This court directs its mind to the fact that the defence counsel during cross examination of the complainant and Alfaz Ali had questioned these witnesses about some inconsistencies/omissions in their police statements which they had given to the police when facts were fresh in their minds with their evidence in court
.
80. 	This court is allowed to take into consideration the inconsistencies or omissions between what these witnesses told the court and their police statements when considering whether these witnesses were believable and credible. However, the police statements are not evidence of the truth of its contents.

81. 	It is obvious that passage of time can affect one’s accuracy of memory. Hence it cannot be expected for every detail to be the same from one account to the next.

82.	If there is any inconsistency or omission, it is necessary to decide firstly whether it is significant and whether it affects adversely the reliability and credibility of the witnesses. If it is significant, then it is for this court to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, then this court may conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for this court to decide to what extent that influences the reliability of the witness evidence.”

24.	This ground has no merit.
Standard of Proof

25.	The appellant was confused about paragraph 175 of the judgement. He read this paragraph to mean that the trial judge had shifted the burden of proof in the case to the appellant. This is not what happened. 

26.	Paragraph 3 of the judgement, is the correct statement of how the burden of proof in this case was applied:
“3. 	As a matter of law, the burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no obligation on the accused to prove his innocence. An accused is presumed to be innocent until he or she is proven guilty. The standard of proof is one of proof beyond reasonable doubt.”

27.	Another ground with no merit.

Lack of Competency inquiry under section 10(1) Juvenile Act 

28.	It is always good practice where a juvenile is going to give evidence in a trial that a competency inquiry be conducted under section 10(1) of the Juvenile Act, to ensure that the juvenile witness understands what is required of her and the other parties have an opportunity to raise issues they consider relevant to their case. However, failure to observe a competency test, is not determinative of the case outcome. 

29.	In this case, even without the competency test the overwhelming evidence against the appellant was compellingly in favor of his conviction. 

30.	This ground has no merit

Appeal Against Sentence

31.	The appellant contends that his sentence of 5 years 4 months 25 days imprisonment with a non-parole period of 4 years imprisonment was harsh and excessive.

32.	The starting point in reviewing the sentence is Kim Nam Bae v State [1999] FJCA 21 and in this case not one of the 4 factors identified in that case was shown by the appellant on his submission to have been satisfied.

33.	Most of the claims in support of the appellant’s submission have no relevance to the facts of sentence in this case. For example, there is no attempt to show how the sentence is excessive by reference to the sentence tariff relied upon by the sentencing judge, nor is there reference to an error in the starting point of the sentence computation, nor is there reference to double counting etc.

34.	The ground has no merit

ORDERS:

1.	Leave to appeal against conviction is refused.
2.	Leave to appeal against sentence is refused.

___________________________________
Hon. Justice Isikeli U. Mataitoga
President, Court of Appeal