Chandra v State [2007] FJHC 51; HAA45.2007 (6 August 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 45 OF 2007

BETWEEN:

ASHOK CHANDRA
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant – In Person
Ms. J. Shah - for the State

Date of Hearing: Friday 27th July, 2007
Date of Decision: Monday 6th August, 2007

DECISION

Background

[1] The appellant was charged with one count of insulting the modesty of a female. After trial on the 6th of March 2007 he was convicted as charged. He was given a 9 month suspended sentence.

[2] He appeals against his conviction and sentence, citing several grounds. In summary it is submitted the learned Magistrate failed to properly consider the available evidence, was overborne by the young age of the complainant and otherwise failed to give appropriate weight to the defence case thereby reaching an unsupportable and erroneous conviction. It is said that the sentence is manifestly excessive.

[3] The appeal is opposed by the State.

[4] The appellant filed written submissions and otherwise emphasized his comprehensive grounds of appeal.

The Evidence

[5] The prosecution was required to prove the following 7 elements:

1. the accused

2. with the intent to insult

3. the modesty of the complainant

4. uttered insulting words

5. intending such words

6. to be heard by the complainant

7. which is likely to offend her modesty

[6] The prosecution called four witnesses. The complainant told the court she was a Form 2 student. She said that on 6th September, 2005 at 4.00pm she went to buy some goods from a shop at Caqiri Road. She said the accused came from behind her and held her and proposed that she should marry him. He showed her some money and asked her to accompany him to a motel and have sex with him. When she refused he said words to the effect that if she did not go with him then the appellant would rape her and throw her in the river just as Prem Chand had done.

[7] The complainant ran off home and immediately told her mother about the events. This lead to the complaint to the police and eventually the charge.

Conviction

[8] In his judgment the learned Magistrate made some reference to the recent complaint of these events to mother by the child. That testimony was correctly considered by the learned Magistrate. Mother’s evidence supported the credibility of the child’s allegation.

[9] Prosecution Witness 3 gave important evidence. This testimony was not relied on in the learned Magistrate’s judgment but in my view reinforces the findings made. This witness was the Head Teacher at the victim’s school. He gave unchallenged evidence that the appellant had visited the school on that same day and told the Head Teacher that he wanted to pay for the victim’s school fees and also that he wanted to see her.

[10] The Head Teacher understandably became suspicious about this inquiry, checked the school records and saw that the appellant was not related to the victim. The teacher gave further evidence that the accused had come to the school seeking out the child on another occasion. I infer from the testimony that his presence was unwanted and he may have been making a nuisance of himself as the school then rang the Valelevu Police Station and asked them to investigate the appellant and his interest in this young school girl.

[11] In contrast to this reasonably clear evidence the defendant’s evidence can only be characterized as vague. He alleged that the complainant was lying, young and unbelievable. He conceded that he had been to see the young girl’s headmaster. The second defence witness provided little helpful evidence.

[12] The well reasoned judgment by the learned Magistrate is in my view unassailable. The learned Magistrate correctly recounts the evidence and makes a proper analysis of the facts to support his findings.

[13] There is no indication from the record the appellant received an unfair trial. The factual matrix was simple to understand. There was one incident before the court. The Prosecution evidence was clear. The learned Magistrate’s findings in my view were appropriate and available from the evidence presented in Court.

[14] Accordingly for these reasons I dismiss the appeal against conviction.

Sentence

[15] I find the sentence imposed by the learned Magistrate was correct in law. The sentence was considerably restrained bearing in mind the circumstances of the offending. A suspended term of imprisonment was not manifestly excessive rather in the circumstances of this offending I find the penalty quite lenient.

[16] The Sentence appeal is dismissed.

Conclusion

[17] The appeal against conviction and sentence is dismissed.

Gerard Winter
JUDGE

At Suva
Monday 6th August, 2007

Solicitors
Appellant – In Person
Office of the Director of Public Prosecutions, Suva – for the State