Singh v The State [2004] FJHC 200; HAM0025D.2004S (6 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO: HAM0025 OF 2004

Between:

JAMES PRANEEL BAHADUR SINGH
Applicant

And:

THE STATE
Respondent

Hearing: 4th May 2004
Ruling: 6th May 2004

Counsel: Mr. E. Veretawatini for Applicant
Ms K. Bavou for State

RULING ON BAIL PENDING APPEAL

The Applicant was convicted, with two others, on one count of rape, contrary to section 149 of the Penal Code, and one count of wrongful confinement, contrary to section 253 of the Penal Code. He was sentenced on the 26th of April 2004 to 5 years imprisonment on each count. He now applies for bail pending appeal.

The Applicant was convicted of the rape and wrongful confinement of one Melini Radrodro in December 1997. Apparently there was much delay in proceeding to hearing because of the non-appearance of the other accused person. The evidence led in court on the 7th of February 2000, was that the victim, who was 18 years old at the time of the offence met the Applicant with two other men on the main road near Visama Village. They were in a van and she was walking with her two sisters on her way back from church. They pulled her into the van, took her to the house of one of the other two men and raped her. One of the men held a knife and threatened to kill her. She later escaped when the accused and the Applicant fell asleep. She went home and told her parents what had happened. A medical report showed that the victim was distressed and had several injuries around the vagina. She was able to walk but with a limp. She also had bruises in the chest area.

It appears that she was unshaken in cross-examination. However she showed some reluctance to give evidence because she did not want to jeopardise her marriage.

The Applicant’s defence was that the victim was the girlfriend of the first accused and that they were all together in the house of the 1st accused but that he did not have sexual intercourse with her.

The learned Magistrate directed himself as to the ingredients of the offence of rape and as to the need for corroboration. He accepted that there was no corroboration of the evidence of the victim, and then summarised the reasons why the corroboration rule in sexual cases was unsatisfactory. He then considered the New Zealand and New South Wales statutory provisions abolishing corroboration, and decided that he would consider only the reliability of the victim’s evidence. He found that he believed her and convicted the accused and the Applicant on both counts.

There are 14 grounds of appeal against these convictions. They, in summary, allege that the learned Magistrate should have called for the evidence of the interviews of the Applicant conducted by the police, that he should not have convicted in the absence of corroboration, that the charge on Count 2 was defective that the burden to prove innocence was placed on the Applicant, and that the delay of 6 years before trial was a breach of section 29 of the Constitution. The grounds of appeal are also that the learned Magistrate failed to properly analyse the evidence and that the sentence was wrong in law on Count 2.

The State opposes this application saying that bail pending appeal should only be granted in exceptional circumstances, that only a few months of imprisonment would have been served when the appeal is heard, and that the appeal was not obviously meritorious.

The principles relevant to this application are whether a substantial portion of the sentence will have been served at the time the appeal is heard, the merit of the appeal and any exceptional grounds justifying bail. There is no right to bail pending appeal.

I cannot accept that the appeal is bound to succeed. Although the form and nature of the corroboration warning in the judgment may be the subject of some argument at the hearing of the appeal, the failure to follow a particular formula is not necessarily fatal. (Mohammed Kasim v. Reginam 22 FLR 120.) Further, vast inroads have now been made into the law of corroboration, not just by legislation such as that referred to by the learned Magistrate, but also by decisions of courts. In particular the Supreme Court of Namibia in State v. Katamba 2000 (4) BCLR 405 (NmS) found the rule to indirectly discriminate against women and to be a breach of the Namibian Constitution. The Privy Council in R v. Gilbert (2002) SLRC 606 also abandoned the rule in relation to the law in Grenada.

The necessity and sufficiency of the corroboration warning in this case deserves full argument. However the ground of appeal in relation to it does not establish a necessarily meritorious ground of appeal.

Nor do the other grounds of appeal appear to be obviously successful. Obviously they will all be fully argued when the court record is made available.

In respect of sentence, the maximum sentence under section 253 of the Penal Code is the same as for kidnapping under section 249, that is 7 years imprisonment.

I find no exceptional grounds to justify a grant of bail in this case. By the time the appeal is heard, the Applicant will only have served a few months of his 5 year term.

For these reasons, bail is refused.

Nazhat Shameem
JUDGE

At Suva
6th May 2004