IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
Criminal Appeal No: HAA 143 of 2006S

Between:

SUBHA ALI
Appellant

And:

THE STATE
Respondent

Hearing: 5th April 2007
Judgment: 17th April 2007

Counsel: Mr. I. Khan for Appellant
Ms S. Puamau for State

JUDGMENT

The Appellant was charged as follows:

Statement of Offence

RAPE: Contrary to Sections 149 and 150 of the Penal Code, Act 17.

Particulars of Offence

SUBHA ALI s/o Arvind Sharma, on the 25th day of July, 2000 at Navua in the Central Division, had unlawful carnal knowledge of a woman namely NAZRIN NISHA d/o Abdul Hussein, without her consent.

He was convicted after a trial, on the 10th of October 2006 in the Nasinu Magistrates’ Court. On the 21st of November he was sentenced to 4 years imprisonment. He now appeals against conviction and sentence. His original grounds of appeal related to the admissibility of recent complaint evidence, and the length of sentence. However, the additional grounds of appeal were the grounds eventually pursued. They are:

(a)	That the learned trial Magistrate erred in law and in fact when considering the credibility and demeanour of the complainant and the appellant when the complainant gave evidence on the 1st day of October 2001 and the appellant giving evidence on the 19th day of July 2006.

(b)	That the learned trial Magistrate erred in law and in fact in not taking into consideration that the charge against the appellant was not heard within a reasonable time according to section 29(3) of the Constitution of Fiji and hence the appellant did not have a fair trial.

History of the case

The case was first called on the 27th of July 2000. The Appellant pleaded not guilty and counsel applied for bail. Bail was granted. On the 30th of August 2000 disclosure was effected. On the 7th of December 2000, the case was adjourned for mention to set a hearing date. On the 25th of January 2001, a hearing date was set for the 23rd of April 2001. On that day the court was busy with the treason trial and the matter was adjourned to the 1st and 2nd of October 2001 for hearing.

On that day the prosecution and defence were both ready to proceed but a police witness was in Bosnia. The trial nevertheless proceeded with the complainant’s evidence. She said that she was a house maid and living in Tokatoka, Navua. The Appellant was her landlord’s son. On the 25th of July 2000, she was at home. The Appellant was also at home. He came to lie down on her bed because he said he wanted to avoid the noise in his own room. He later grabbed her, took her to another room and had sexual intercourse with her without her consent. She said that there was partial penetration only. She then ran to the neighbour’s house and told them what had occurred. She later called her de facto husband and told him what had happened. She was medically examined.

The report shows that the history related to the doctor was consistent with her evidence-in-chief. The doctor found a ½ cm circular bruise on her inner thigh, and redness in the vagina. Her clothing had a 10cm tear in it, and the doctor found the findings to be consistent with a sexual assault.

Her husband also gave evidence and said that on the 25th of July 2000, the complainant rang him up and asked him to come home. When he saw her, she was distressed and said the Appellant had raped her. He reported the matter to the police.

The trial continued on the next day with evidence from relatives of the Appellant’s to the effect that when they saw the complainant that day, she was laughing. The doctor gave evidence to say that the findings on medical examination were consistent with non-consensual or vigorous sexual intercourse.

There were then several adjournments. On the 2nd of November 2001, defence counsel was involved in a murder trial. On the 22nd of February 2002, the hearing date was vacated but no reason was given. On the 9th of April 2002, the court was busy. On the 12th of June 2002, the defence asked for an adjournment. The prosecution did not object. On the 26th of August 2002, defence counsel was sick.

There were further adjournments with no reason given, although on the 9th of December 2002 the court was busy, and on the 2nd of May 2003, the defence asked for another date. On the 26th of May 2003, the defence asked for another adjournment, as was also the case on the 23rd of July 2003.

On the 29th of September 2003, there was an adjournment "by consent of the parties."

On the 26th of November 2003, the Appellant failed to appear, although he appeared on the 4th of December 2003. On the 11th of August 2004, defence counsel was in a High Court trial, as he was, on the 22nd of September 2004. On the 21st of October, the case was called before another Magistrate. On the 1st of December 2004, the court was busy. On the 10th of January 2005, defence counsel failed to appear.

The court was then unavailable until the matter was listed for hearing for the 10th of August 2005. On that date the prosecution (for the first time) asked for an adjournment. The Appellant was not present.

On the 15th of September 2005, the prosecution again asked for an adjournment. On the 18th of November 2005, defence counsel was in the High Court.

There were several other adjournments, with bench warrants issued from the 27th of February 2006. Both parties were ready to proceed on the 10th of May 2006 but the court was busy. On the 5th of July 2006, the defence was not ready and there was another adjournment. The trial continued finally, on the 19th of July 2006 with the evidence of Sgt. Pradip Kumar who was the interviewing officer. The Appellant denied having sexual intercourse with the complainant in the interview.

The Appellant then gave evidence similar to the contents of his caution statement. He said he had asked her if she would have sexual intercourse with him and she agreed but that they did not have sexual intercourse.

He called a witness, Sophia Sainaz, a relative of his. She said she saw the complainant on the 25th of July 2000 and that she was not distressed or crying.

Judgment was delivered on the 10th of October 2006. The learned Magistrate accepted the complainant’s evidence that the Appellant had had sexual intercourse with her without her consent and said that the doctor’s evidence confirmed sexual intercourse and lack of consent. At page 6 of his judgment, he said:

"I have carefully read and re-read the complainant’s and the accused’s evidence, on the issue of consent, and I have carefully compared their evidence. At the end of it all, I prefer and accept the complainant’s evidence on the issue of consent, for the following reasons:

(a)	The complainant’s evidence was logical and consistent throughout. She gave her evidence forthrightly, and does not appear to be hiding anything. As for the accused’s evidence, it was full of inconsistencies, and when cross-examined by the prosecutor, he was very evasive and argumentative.

(b)	If the complainant was consenting to sex with the accused, why did she phone her boyfriend after the incident on 25.7.00, wherein he left work and caught a taxi home? Thereafter, he did not return to work, until the matter was reported to the police. Obviously, the complainant’s action was not that of a woman consenting to sex with a male. If she really consented to sex with the accused, she would not have called PW2. She would have hidden the incident from her boyfriend.

(c)	PW2’s evidence of recent complaint. PW2 was PW1’s boyfriend. On 25.7.00, he left PW1 for work at 8.30am. PW2 said PW1 rang him at work. He said, she was crying and she told him to come home. He returned home in a taxi. PW1 told him that the accused raped her. This evidence of recent complaint showed the consistency in the complainant’s conduct in reporting what allegedly occurred to her.

(d)	As previously mentioned, the doctor (that is, PW5) examined the complainant’s vagina, and submitted his medical report, as Prosecution Exhibit No. 1. He noted redness in the complainant’s vagina, between 5 to 8 o’clock. When cross-examined, the doctor said, "The redness in the complainant’s vagina points to possible penetration by a male penis. I think the penetration is non-consensual. The redness suggest the penetration was forceful." PW5’s evidence therefore suggest the intercourse was non-consensual, and this again confirmed the complainant’s version of events.

(e)	Three civilian witness (that is, PW3, PW4 and DW2) who were near the crime scene, at the material time, all said that, the complainant appeared normal after the alleged incident. PW3 said, the complainant was laughing after the incident. PW4 said, the complainant was not crying at the time. He said she was laughing. DW2 said, the complainant was normal after the incident. These witnesses were all closely related to the accused, and as a result, I have disregarded their evidence.

Given the above, I find the complainant’s evidence on the issue of consent credible, and I accept the same. I therefore find as a matter of fact that, the complainant did not consent to having sexual intercourse with the accused, on 25.7.00. I reject the accused’s denials."

He found the accused guilty as charged. After hearing mitigation, the learned Magistrate sentenced the Appellant to 4 years imprisonment.

The delay

Counsel for the Appellant submitted that throughout the delays, the Appellant was almost always present with counsel. He said that the case was called 62 times between July 2000 and November 2006 and that it was impossible to assess the credibility of the complainant after a lapse of 5 years and 3 months. Referring to the Fiji Court of Appeal decision in Apaitia Seru and Anthony Stephens v. The State Crim. App. AAU0041/1999S, he said that the Appellant had not had a trial within a reasonable time and that the Appellant was thereby prejudiced.

The State said that the learned Magistrate had substantially assessed the credibility of the complainant and that despite the delay, an appellate court should hesitate to interfere with such findings. State counsel further said that the defence had failed to raise delay in the trial court, and that because the Appellant himself or his counsel were largely to blame for the delay, the appeal should not be allowed on that basis.

In Seru v. The State the charges had been laid in November 1994. The trial commenced in September 1999. Referring to the right to trial within a reasonable time under section 29(1) of the Constitution, the Court of Appeal referring to decision of the New Zealand Court of Appeal in Martin v. Tauranga District Court [1993] 2 NZLR 419 said that the right to a fair trial, and the right to a trial within a reasonable time are treated as distinct. In deciding whether or not delay was reasonable, a court should consider factors such as the length of the delay, the waiver of any time periods, the reasons for the delay and prejudice to the accused. However, in some cases, "a particular case may involve delay of such preparations that given the facts and the court’s general experience based on other cases that have come before it, the court can say with confidence that the delay must be categorized as unreasonable." In the case on appeal, the court found that despite the absence of any specific prejudice "the delays are of an order where the presence of prejudice may be inferred." The convictions were quashed.

In the case of this Appellant, there can be no doubt that he or his counsel were greatly to blame for the adjournments. The prosecution only twice sought an adjournment. However the bulk of the delay was caused by the unavailability of the court. The result was a delay of over 5 years.

After such a delay prejudice must be inferred. In this case, I am not persuaded that the learned Magistrate was able to make any assessment at all of the complainant’s evidence. Despite his careful written analysis, the entire trial depended heavily on the complainant’s evidence. Heard 5 years before judgment, I consider that there was prejudice to the Appellant in that her demeanour and credibility must have been impossible to assess.

In the recent decision of the Court of Appeal in Mohammed Riaz Shameem v. The State AAU0096 of 2005, the appellant was charged with indecent assault on the 22nd of October 1999. There were thirty adjournments, and the trial did not commence for four years after charge. Eventually, judgment was delivered 6 years after the first call. The Court of Appeal allowed the appeal saying that the delay had affected the quality of the evidence before the court. Commenting on delay in Magistrates’ Court hearings, the Court said that the situation appeared to have worsened. The proceedings were stayed. The facts of that case are comparable to this one on appeal.

In these circumstances I consider that the Appellant did not have a trial within a reasonable time. There was a breach of section 29 of the Constitution and the conviction and sentence must be quashed. This appeal is allowed.

Nazhat Shameem
JUDGE

At Suva
17th April 2007