State v Prasad [2004] FJHC 217; HAM0034X.2004S (24 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS ACTION NO: HAM0034 OF 2004S

STATE

v.

LALTA PRASAD

Hearing: 18th June 2004
Ruling: 24th June 2004

Counsel: Mr. D. Prasad for State
Accused in Person

RULING

The accused has been convicted, after a trial in the Suva Magistrates’ Court, on the following charges:

FIRST COUNT

Statement of Offence

INCEST BY MALES: Contrary to section 178(1) of the Penal Code, Cap 17.

Particulars of Offence

LALTA PRASAD s/o Sarju Prasad, on the 19th day of April 1998, at Nasinu in the Central Division, had unlawful carnal knowledge of his daughter namely SHALINI SANJINI PRASAD d/o Lalta Prasad.

SECOND COUNT

Statement of Offence

INCEST BY MALES: Contrary to section 178(1) of the Penal Code, Cap 17.

Particulars of Offence

LALTA PRASAD s/o Sarju Prasad, between the 01st day of January 2000 and 31st day of December 2000, at Nasinu in the Central Division, had unlawful carnal knowledge of his daughter namely SHALINI SANJINI PRASAD d/o Lalta Prasad.

THIRD COUNT

Statement of Offence

INCEST BY MALES: Contrary to section 178(1) of the Penal Code, Cap 17.

Particulars of Offence

LALTA PRASAD s/o Sarju Prasad, between the 01st day of January 2001 and 31st day of December 2001, at Nasinu in the Central Division, had unlawful carnal knowledge of his daughter namely SHALINI SANJINI PRASAD d/o Lalta Prasad.

FOURTH COUNT

Statement of Offence

INCEST BY MALES: Contrary to section 178(1) of the Penal Code, Cap 17.

Particulars of Offence

LALTA PRASAD s/o Sarju Prasad, between the 01st day of January 2002 and 31st day of December 2002, at Nasinu in the Central Division, had unlawful carnal knowledge of his daughter namely SHALINI SANJINI PRASAD d/o Lalta Prasad.

The trial commenced on the 10th of May 2004, and concluded on the 4th of June 2004 with a transfer to the High Court for sentence. The learned Magistrate referred to the New Zealand Court of Appeal decision in R v. Accused [1988] NZCA 232; (1989) 1 NZLR 643, and decided that a greater punishment should be inflicted in respect of the offence, than the Magistrates’ Court had the power to inflict. He referred, in particular, to the fact that the victim in the case, was a child under the age of 13 years.

The facts led in evidence at the trial were that the victim Shalini Sanjini was born on the 25th of May 1988. She is the natural daughter of the accused and Raj Kumari. In 1998 when she was 10 years old the accused, her father attempted to have sexual intercourse with her, after slapping her and threatening her. While trying to have sexual intercourse with her, he covered her mouth with his hand.

In 2000, towards the beginning of the year, the accused came home drunk and had sexual intercourse with her on several occasions. In 2001, he had sexual intercourse with her on many occasions, and again in 2002. He threatened to kill her if she told anyone what had happened.

The victim told her cousin what had happened in 2001. Her cousin told her own mother, who told the victim’s grandmother, who told the victim’s mother. On 25th June 2002, the victim was medically examined. A copy of the medical report was tendered and is on the court file. The history related to the doctor was consistent with the evidence in court. The doctor found that the victim had been exposed to sexual intercourse and recommended that the victim could not safely stay at home with her parents.

The victim’s mother tendered a diary apparently written by the victim. It details incidents of acts of sexual abuse, including sexual intercourse committed by the accused on the victim. The diary was not shown to the victim in court and she did not identify it as a diary written contemporaneously by her. However, at this sentencing hearing the accused agreed that his daughter had written the diary. The accused’s caution interview was tendered in court. It is exculpatory. That was the evidence at the trial. The accused remained silent.

Although this is a transfer for sentence, it is evident that there are several irregularities on the record. Firstly, the victim’s evidence was of an attempted penetration on count 1. However the learned Magistrate convicted of the substantive offence of incest.

Secondly, it is not clear how the diary was admitted in evidence. The victim did not identify it. Nor did she say that it was a contemporaneous note. Indeed, it appears to have been written 4 years after the first alleged incident. It is a heartrending account of a child suffering from continual abuse, and it might have been admissible as a previous consistent statement, had the witness been asked to identify it and verify it. However it was tendered by her mother, who did not identify it as her daughter’s record. Further the learned magistrate referred to it as being “corroborative” in his judgment.

Corroboration is some independent evidence which implicates the accused in some material particular. The diary could not constitute corroboration because it was made by the victim herself. It might have pointed to consistency but it could not have been corroboration.

Indeed there was no corroboration in this case. The medical report did not implicate the accused at all. Finally, the accused’s defence was that he did not have sexual intercourse with his daughter but she had fabricated her story because he had withdrawn her from school. There was no reference in the judgment to this defence.

In the circumstances I consider that the convictions are flawed. Although this matter was sent to the High Court on a transfer for sentence, section 325(1) of the Criminal Procedure Code provides:

“In the case of any proceedings in a magistrates court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may –

(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 319 and 320 and may enhance the sentence.” (my emphasis)

Section 319 allows the High Court to confirm, reverse or vary a decision of the Magistrates’ Court. State counsel submitted that the revisional jurisdiction of the court could not be used on a section 222 transfer for sentence. However, this submission flies in the face of the provisions of section 325(1). Further, if he is right, the consequence would be that the High Court would be forced to sentence on erroneous convictions. I do not accept that this is the position. The logical meaning of section 325(1) is that the High Court may revise proceedings which have been brought to its attention in any way.

In this case I therefore find that I have powers to quash the convictions and order a retrial in the Magistrates’ Court. Finally, the Magistrates’ Courts now have powers to sentence accused persons to a limit of 20 years for more than one offence. The tariff for incest with a child under the age of 13 years, is between 6 to 7 years imprisonment (State v. Viliame Tamani HAC0007 of 2003S). Consecutive sentences on each count would be excessive and comparative cases (Aseri Koroi v. State HAA0055 of 2002) show that courts have been imposing concurrent sentences. In the circumstances I see no reason why this case was transferred to the High Court for sentence.

It is unfortunate that the victim, a child of 15 years will have to give evidence again on retrial. However, the convictions cannot stand. They are quashed in the revisional jurisdiction of the court. A retrial is ordered. I will now hear the accused’s application for bail pending trial.

Nazhat Shameem
JUDGE

At Suva
24th June 2004