Narayan v The State [2005] FJHC 229; HAM0056D.2005S (16 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM0056 of 2005S

Between:

BINESH NARAYAN
Applicant

And:

THE STATE
Respondent

Hearing: 9th August 2005
Ruling: 16th August 2005

Counsel: Mr. N. Shivam for Applicant
Ms P. Madanavosa for State

RULING

This is a bail pending appeal application. The Applicant was convicted, after a trial, of the prohibited use of an examination paper, and was sentenced to 12 months imprisonment. By petition of appeal, filed on the 2nd of August 2005, the Applicant appeals against the conviction on the grounds that the learned Magistrate erred in relying on the inconsistent evidence of the prosecution in accepting the evidence of accomplices without corroboration, and in failing to properly analyse the evidence.

The grounds for the bail application are that the appeal is likely to succeed, there will be delay before the hearing of the appeal and the Applicant is a 28 year old first offender who was a senior lecturer at the Fiji Institute of Technology and has a stable home background.

The State opposes the bail application saying that the merits of the appeal are difficult to assess in the absence of a court record and a filed petition of appeal, and that the Applicant was only sentenced on the 1st of August 2005 and therefore will not have served a substantial portion of his custodial sentence when the appeal is heard.

The Applicant was charged under the Examination Act Cap. 262, of giving a copy of the Business Communication exam paper to two students after receiving money from them, on the 4th of June 2002. The evidence led according to the judgment of the learned Magistrate was that the Applicant was a tutor at the Fiji Institute of Technology, teaching Business Communication. One of his students, one Riteshwar Gounder came to see him about obtaining a copy of examination papers prior to the exams. He and one Nitin Sharma, another student went to the Applicant’s office. He gave them a brown envelope with the exam paper inside. One student gave him $30 and the other, $70. There was some contradiction in the evidence of the two students as to what the front page of the paper looked like. One of them photocopied the paper and gave it to other students. The examinations were to be held on the 15th of June. A copy of the paper was seized by the police from the house of one of the FIT students.

The moderator of the exam gave evidence saying that the paper he was shown by the police was the final copy of the Business Communication paper and that another was the “leaked” copy. The difference between the two is that the cover sheet of the leaked copy was missing and that part of one question was laid out differently. However, the contents of both papers were the same.

The Applicant under caution denied selling the Business Communication exam paper to any of the students. In court he remained silent and called a witness to say that there were administrative difficulties at the Institute which had led to improper access to exam papers in the past.

The learned Magistrate found that there were inconsistencies in the accounts given by the two students but accepted their evidence as credible. In particular, she found the witness Nitin Sharma to be an impressive witness and unshaken under cross-examination. She found the Applicant guilty as charged. She sentenced him to 12 months imprisonment on the 1st of August 2005.

Counsel for the Applicant said that the appeal was bound to succeed because the prosecution witnesses were inconsistent with each other, and because the learned Magistrate failed to consider these discrepancies specifically. He further said that she relied on the evidence of the two students, who were accomplices, but that she failed to warn herself on the need for corroboration. He further said that accomplices are not mutually corroborative in law but were treated as if they were, in the judgment.

The merits of the appeal are certainly relevant in a bail pending appeal application. However, it is not enough that the Applicant shows an arguable ground of appeal. He must show that his appeal has every chance of success.

In this case the learned Magistrate gave no corroboration warning in relation to PW1 and PW2, the two students who supposedly bought the paper from the Applicant. Further, she accepted their evidence as being credible. This suggests that she found them to be mutually corroborative. Although counsel suggested that accomplices cannot corroborate each other, the question of whether mutual corroboration is not permissible in the case of accomplices, is a vexed one. In DPP v. Hester (1973) 57 Cr. App. R. 212 H.L., the House of Lords (per Lord Diplock at p.245) said that the purpose of the rule was to warn the jury about the possibility of a jointly fabricated story by two or more accomplices who were involved in the same act as the accused (participes criminis). In DPP v. Kilbourne (1973) 57 Cr. App. R. 381, Lord Reid said that the prohibition of mutual corroboration for accomplices was not a general rule. It did not necessarily apply to accomplices who were in different categories of participation (for instance a receiver giving evidence against a thief on the basis of similar offending) and that mutual corroboration may be accepted where the circumstances are such as they exclude the danger of a jointly fabricated story.

Whether or not the failure to give a corroboration warning in this case, and the failure to consider whether mutual corroboration was possible, lay the basis for a ground of appeal which is clearly meritorious, is difficult to assess without the record and without hearing full argument on the issue. I would also need to hear argument on whether there were other sources of corroboration which existed in fact, on the evidence, thereby suggesting that there was no miscarriage of justice.

I am not satisfied that this appeal is bound to succeed.

On the question of delay, the Applicant has only served two weeks of his term of imprisonment. If his appeal is heard in September, he will have served less than two months of it. This is not a substantial portion of the whole.

Further, on the circumstances of his employment and family I see nothing which constitutes exceptional grounds justifying the grant of bail.

For these reasons bail is refused.

Nazhat Shameem
JUDGE

At Suva
16th August 2005