Singh v The State [2004] FJHC 264; HAM0075D.2004S (18 November 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CR. MISC. CASE NO: HAM0075 OF 2004S

Between:

SAHA DEO SINGH
Applicant

And:

THE STATE
Respondent

Hearing: 17th November 2004
Ruling: 18th November 2004

Counsel: Mr. M. Arjun for Applicant
Ms L. Chandra for State

RULING

The Applicant applies for bail pending appeal. The affidavit of Arvind Singh, the Applicant’s father sets out the grounds for the application.

The Applicant was convicted of indecent assault after a trial which commenced on the 9th of September 2004. He was sentenced to two years imprisonment on the 29th of October 2004. The facts of the case, according to the judgment of the Magistrates’ Court, were that the Applicant in April 2004 was living in Samabula with his live-in housegirl, and her two children. On the 2nd of April 2004, after he had made several sexual innuendoes to her, the Applicant walked into the kitchen, told the victim that he had not had sex with a woman for a long time because his wife was away, lifted her skirt and touched her private parts. The victim’s four year old daughter was present, and started to cry. The victim took the child and left the house for her aunt’s house. She told her aunt what had happened and made a complaint to the police. The Applicant was interviewed under caution and he denied the allegations. In his sworn evidence in court, he denied going into the kitchen on the 2nd of April and denied touching the victim.

The learned Magistrate declined to warn himself on the need to look for corroboration, said he believed the complainant and found the Applicant guilty as charged.

The grounds for this application are that the appeal is meritorious because there was no corroboration and no medical evidence, there will be a delay in the hearing of the appeal and a substantial portion of the sentence will have been served by the time the appeal is heard.

State counsel opposes the application, saying that the corroboration warning is no longer necessary in sexual cases, that appeals in the Suva High Court are heard quickly, and that the Applicant has only served over two weeks of his two year term of imprisonment.

The Bail Act provides that relevant considerations for bail pending appeal are whether it is likely that the appeal will succeed, whether a substantial portion of the sentence will have been served when the appeal is heard, and any delay in the appeal. The Applicant may also be granted bail where he shows that exceptional circumstances exist.

It is of course impossible, in the absence of the court record, to assess the likelihood of success of this appeal. It appears that there was in fact no corroborative evidence of the victim’s evidence. The Fiji Court of Appeal in Seremaia Balelala Crim. App. No. AAU0003 of 2004S said, after considering, in particular the Privy Council decision in Regina v. Gilbert [2002] UKPC 17; (2002) 2 AC 531:

“... it is open for the Court to follow the guidance which has been given at the highest level in other jurisdictions, to hold that the Rule is counter productive, confusing and both discriminatory and demeaning of women; and, as a result to adopt the approach which was approved in Regina v. Gilbert and in Longman v. The Queen.

Upon that basis it would henceforth be a matter for discretion, in accordance with the general law, for a judge to give a warning or caution, where ever there was some particular aspect of the evidence giving rise to a question as to its reliability. That might arise, for example, where the complainant had been previously found to be unreliable, or was shown to have had a grudge against the accused, or where there had been a substantial delay in the making of the complaint, or where the complaint was shown by reason of age or mental disability to be questionable as to her veracity, or where she had given inconsistent accounts.”

In the absence of the court record, I cannot say whether on the facts of the case, the learned Magistrate ought to have given a warning to himself.

Further, given the nature of the indecent assault alleged by the victim, the lack of any medical evidence is of no significance. I cannot say therefore that the appeal against conviction has merits.

In relation to sentence, the 2 year term imposed is within the tariff for indecent assault. Sexual harassment cases would ordinarily lead to custodial cases, even where the assault was fleeting and non-penetrative, because of the gross breach of trust involved, and the exploitation of the vulnerable position usually held by the victim in the workplace.

The appeal is likely to be heard this year, subject to the availability of the record. Even if the sentence is reduced to 9 months to 12 months imprisonment, the Applicant will have served only 2 months of his term of imprisonment by the hearing date. This is not excessively long.

In all the circumstances the Applicant has not persuaded me that bail should be granted pending appeal. His application is dismissed.

Nazhat Shameem
JUDGE

At Suva
18th November 2004