Nandan v State [2008] FJHC 262; HAA065J.2008 (24 October 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 065 of 2008

Between:

VISHWA NANDAN
Appellant

And:

THE STATE
Respondent

Hearing: 17th October 2008
Judgment: 24th October 2008

Counsel: Mr. R. Chand for Appellant
Mr. S. Qica for State

JUDGMENT

[1] The Appellant was convicted of rape and sentenced to 7½ years imprisonment by the Nausori Magistrates’ Court on the 30th of April 2008. The petition of appeal was initially filed in person and raised very general grounds of appeal. They alleged an unfair trial and a failure to hold a trial within a trial. Amended grounds of appeal were filed later by counsel.

[2] The Appellant was charged on the 2nd of July 2007 with the following offences:

Count One

Statement of Offence

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

Particulars of Offence

VISHWA NANDAN s/o MUNI SAMI GOUNDER on the 24th day of February 2004 at Manoca, Nausori in the Central Division had unlawful carnal knowledge of a girl namely VINITA VANDANA d/o HARA NARAYAN without her consent.

Count Two

Statement of Offence

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

Particulars of Offence

VISHWA NANDAN s/o MUNI SAMI GOUNDER on the 31st day of January, 2005 at Manoca, Nausori in the Central Division had unlawful carnal knowledge of a girl namely VINITA VANDANA d/o HARA NARAYAN without her consent.

[3] The Appellant pleaded not guilty on the 2nd of July 2007 and elected Magistrates’ Court trial. It appears that different charges were originally laid and these new counts were substituted in July 2007. Defence counsel asked for time to take fresh instructions. The trial proceeded on the 6th of September 2007.

[4] The evidence of Vinita Vandana was that she was born on the 14th of February 1990. On the 24th of February 2004 (when she was 14 years old) she was at home at about 9.30am when the Appellant, her stepfather, came home. He was employed as a night watchman. He had told her to stay at home on the 24th of February. At 9.30am he sent her mother to town. She was in the kitchen washing the dishes when he called her. He was lying on his bed. He pushed her onto the bed, took off her shorts and panties, and threatened to kill her if she yelled. He then had sexual intercourse with her by force. She did not tell her mother when she came home as she was weak. He then had sexual intercourse with her frequently until the 31st of January 2005. Her evidence was:

"Last act was on 31/01/05. On that day, mom took my brother to hospital and Vishwa forcefully asked me to have sex. He threateningly took my consent. When he saw my stomach was big he asked me why and I said I did not know. He had sexual intercourse again with me on 31/01/05. After asking about my stomach he forcefully had sexual intercourse with me."

[5] When she went to school in the first term of 2005 her teacher Mrs. Taylor was suspicious. She questioned her and the complainant told her what had happened. She then wrote two letters to the school about her stepfather abusing her, and about her pregnancy. At the time she gave evidence, she was living at the St. Christopher’s Home.

[6] Under cross-examination, her medical report was put to her. The medical report dated the 16th of February 2005 states in the portion filled by the police as a request to the medical officer: "She was defiled by her stepfather from April 2004 to Feb 2005." The doctor found that she was 28 weeks pregnant and that there was some fetal abnormality. She said she could not recall giving those dates to the police.

[7] Her previous statement to the police was also put to her. It was given on the 17th of February 2005, and stated that she could not recall the exact date of the first incident of rape. The statement was not tendered but from the submissions of counsel for the State, it seems that in her statement she said that the rapes started in February 2004 and continued until the 31st of January 2004. There was a suggestion of an earlier statement on the 16th of February 2005, but there was no admission as to the existence of an earlier statement. The complainant denied telling her teacher Mrs. Taylor that the first incident was in April 2004. She said that she was certain of the dates given in examination-in-chief. She admitted giving a statement on 16th June 2007 giving the precise dates. Again, this statement was not tendered so I am unable to assess any inconsistencies in it.

[8] Sarojini Devi gave evidence that the Appellant is her husband. She had 4 children from her previous marriage. On the 16th of February 2005, a police officer came to her home and told her that Vinita was pregnant. She said that in 2004 Vinita missed a lot of school and would stay at home with her stepfather.

[9] Mere Oli Taylor gave evidence that she was a teacher at Baulevu High School. In 2004 the complainant was in Form 3. The teachers became concerned about the complainant’s physical appearance. On the 14th of February 2005, she questioned the complainant and the complainant told her that she was pregnant and that her stepfather was responsible. She said that the sexual intercourse first commenced in February. The matter was reported to the Social Welfare Department. The complainant was then put in the care of Social Welfare.

[10] Under cross-examination she agreed that the complainant had concealed what had occurred for a long time. She said that in her police statement she said that the complainant had told her that the incidents commenced from April 2004 but that it was her mistake and not the complainant’s. The complainant had said February.

[11] Woman Corporal Amelia of the Nausori Police Station gave evidence that the Social Welfare Department had lodged a complaint with the police on the 15th of February 2005. She arranged for a statement to be taken and for medical examination.

[12] She was cross-examined on the complainant’s medical report. She agreed that the complainant had said that she had been defiled from April 2004 to February 2005. She agreed that Mrs. Taylor had also said that the complainant had told her that the first incident was in April 2004. However she said that in her statement of February 17th, the complainant had said that the first instance was in February 2004 and that this date also appeared in her letter to Mrs. Taylor of 16th February. She said that the complainant gave her second statement in June 2007 in which she gave the date the 24th of February for the first time. She said that the complainant had not made up the date and that she was a "victim of sexual abuse and would take time for her to recollect."

[13] The Appellant’s police interview record was tendered without objection. It was exculpatory. He denied sexual intercourse. He was charged with rape "between 1/2/04 and 30/1/05" and with rape on 31/01/05.

[14] The defence called Ajay Nand, Principal of Baulevu High School. He said that according to their school records the complainant was at school on the 31st of January 2005. The school term commenced on 24th January 2005.

[15] The Appellant gave sworn evidence. He said that he did not have sexual intercourse with the complainant at any time. His son Armogan Goundar gave evidence that between December 15th 2004 and March 17th 2005, the Appellant worked for him at Manoca. A neighbor Akhi Kumar gave evidence that he worked for Armogan Goundar, with the Appellant from 15th December 2004 until 17th March 2005.

[16] The judgment was delivered on 28th April 2008. After reviewing the evidence, the learned Magistrate said at page 50:

"In my observation I was greatly impressed with the complainant. She was forthright and had no hesitation in relating her unfortunate experience in court. She also had no hesitation in identifying her stepfather as the person who had sexual intercourse with her and in the process impregnating her. Whilst she was able to identify two separate occasions, she nevertheless claimed that since February 2004, her stepfather the accused continually had sexual intercourse with her. As a result she became pregnant and was committed as a ward of St. Christopher’s Home to protect herself from any further advances."

[17] She then said that she accepted the evidence that the complainant, her mother and her siblings were financially reliant on the Appellant and that "to defy him would be unthinkable." She accepted the complainant’s evidence that she was too frightened to tell anyone about the incident.

[18] The learned Magistrate referred in several places in the judgment to the confusion as to the dates, but said that despite this she had no doubt at all as to the truthfulness and reliability of the complainant’s evidence. She was not impressed with the Appellant’s demeanour finding his evidence evasive and inconsistent. She referred to these inconsistencies and said she rejected his evidence.

[19] She said she was satisfied beyond reasonable doubt that the Appellant raped the complainant on the 24th of February 2004. However on Count 2 she said that it was not possible that the rape occurred on the 31st of January 2005 as she was at school on that day. She found the Appellant not guilty on Count 2.

[20] In sentencing the Appellant, the learned Magistrate took into account the age of the Appellant (65 years), his remorse and his previous good character. The aggravating factors were the breach of trust and the resulting pregnancy. She picked 7 years as the starting point, and arrived at 10 years imprisonment. She reduced the sentence further to 7½ years because of his age and good character.

[21] The amended grounds of appeal are as follows:

(a) That the learned trial Magistrate erred in law and in fact in holding and concluding that the prosecution had proved Count 1 of the charge, in particular that Vishwa Nadan committed the act of rape on the 24th day of February 2004 beyond reasonable doubt when upon analyzing the prosecution case such a finding cannot be arrived at reasonably thus there is a miscarriage of justice.

(b) That the learned trial Magistrate erred in law and in fact in convicting the Accused upon the prosecution’s evidence when the allegation made and put to the Accused during the caution interview on the 22nd day of February 2005 and during the laying of the charge on the 16th day of March 2006 wherein the statement of fact revealed that the Accused Vishwa Nadan committed the offence of rape between the period of February 2004 up to the 31st day of January 2005 which tantamount to the fact that the Accused committed numerous acts and offences of rape contrary to the charge for the commission of the offence on the 24th day of February 2004.

(c) That the learned trial Magistrate failed to consider the submission made on the part of the Accused raising material points of fact and law relevant to reaching a finding of not guilty as to Count 1 of the charge but gave undue weight to the prosecution’s submission and finding the Accused guilty thereby resulting in the miscarriage of justice.

(d) That the learned trial Magistrate erred in law and in fact in convicting the Accused, Vishwa Nadan in Count 1 of the charge and the resultant acquittal in Count 2 of the charge because of Her Worship’s finding and conclusion that the complainant had successfully identified the date of the offence being the 24th day of February 2004 by revisiting the day to find out what the exact date was and Her Worship believing that that was the reason why she was able to identify the date in her second statement, after a lapse of 18 months of her first statement, when in fact the exact day was never identified thus there being a miscarriage of justice.

(e) That the sentence imposed by the learned trial Magistrate in this case is harsh and oppressive taking all the circumstances of this case and in particular that the case has been hanging over Vishwa Nadan head for 3 years which period should have been reduced from the total period of sentence of seven and half (7½) years.

[22] The appeal can be summarized in this way. The Appellant says that the evidence of the complainant was incapable of belief because of the inconsistencies in her previous statements (to the doctor, to the police, and to her teacher) about the date of the first incident of rape. Further, if there was a reasonable doubt about the 31st of January 2005 (the date of the second count) then there must be a doubt about the date on Count 1. Lastly the Appellant says that the 7½ year sentence failed to take into account the 3 year delay in bringing the prosecution to its conclusion.

The dates

[23] The complainant in her evidence denied that she told the doctor and the police that the rapes commenced in April. In her first statement (on 17th February 2005) she said that they started in February 2005 and she could not recall the exact date. In a statement made in June 2007, she gave the specific date as the 24th of February 2004. In evidence in court, she said that it occurred on the 24th of February.

[24] Where multiple acts of sexual intercourse have occurred over a period of time, it is not unusual to get evidence of dates which are inconsistent. It is for that reason that prosecutors often prefer to lay "rolled up counts." However in this case the prosecution instead chose to specify two dates. This was not a case of the court needing to direct itself that between two dates at least one act of rape occurred. It was a case of alleging one rape on each of the two days alleged.

[25] Nor is this a case of an objection to the charge on the basis that the wrong date is alleged. The defence does not submit that the charge should have been differently worded, only that the complainant’s credibility was affected by inconsistent accounts of the date of the first act of rape.

[26] The record shows that the complainant was exhaustively cross-examined on the date of the first offence. She was cross-examined on the dates written in the medical report, the dates given to Mrs. Taylor and the dates given to the police. She was asked why she did not give the 24th of February 2007 to the police until June 2007. She maintained her position throughout cross-examination, and the learned Magistrate accepted her evidence. She accepted the evidence that the complainant was raped by the Appellant on the 24th of February 2004.

[27] I do not consider that this finding was in any way perverse.

[28] The position on Count 2 was not the same as the position on Count 1. The school records showed that on the 31st of January 2005, the complainant was at school. Because the complainant had said that it occurred on a day on which she was not at school, it could not have occurred on the 31st of January 2005. If the complainant had said in her evidence that it could have occurred on another day and she was not sure, a conviction might still have been entered because under section 214(2) of the Criminal Procedure Code, variance between the charge and the evidence produced in support of it with respect to the date or time on which the offence was alleged to have been committed is not material and need not lead to an amendment of the charge. However if the accused is prejudiced by the variance, the court should adjourn the hearing for as long as it is necessary.

[29] In this case if the complainant had been unsure of the date a conviction might still have been entered on the basis, for instance, that the offence was committed on a date in January 2005. However, she said she was certain of the 31st of January 2005, and the defence evidence suggested that this was not possible. Certainly the school record was sufficient to give to the learned Magistrate a reasonable doubt as to whether there was a rape on the 31st of January. The doubt arose, not about the credibility of the complainant, about the rape, but about the dates on which they occurred. The acquittal on Count 2 did not affect the conviction on Count 1. If the complainant confused the dates on Count 2, it was not an irresistible inference that she was either lying or confused on Count 1.

[30] The grounds of appeal in relation to the conviction on Count 1 are dismissed.

Sentence

[31] The court record does not set out the reasons for the delay in the hearing of the case. The Appellant was interviewed on the 22nd of February 2005. He was charged on the 16th of March 2005 and he must have been produced in court shortly thereafter. The trial did not commence until July 2007. I do not know the reasons for the delay, and to what extent the Appellant was responsible for the delay. It is possible that the original file is lost. In the circumstances I will assume that the delay was not of the Appellant’s making.

[32] In mitigation, counsel said "Accused is 65 years old. Matter hanging over his head for few years now. Ask court to consider that. Accused indeed remorseful for what happened. Ask court to grant leniency. Accused is also first offender."

[33] In paragraph 2 of her sentencing remarks the learned Magistrate said:

"In mitigating for the accused, counsel submits that the accused is a 65 year old man. He is deeply remorseful over what has happened and seeks the leniency of the court. He is a first offender and the court should take account the fact that this matter has taken some years to dispose."

She then went on to say:

"According to the defendant he is deeply remorseful over what happened. It is unfortunate that at no stage of the proceedings has the accused indicated or shown that he regrets his actions. By his denial, he chose to torment the victim further by forcing her to testify and relate her ordeal in court. This is not a reflection of remorse. Also by his denial he was himself responsible for the delay in the disposal of the case."

[34] Regrettably, we do not know if this last remark was correct. The delay may have been systemic court delay, or the prosecutor’s delay. In the circumstances I will assume, as I have said, that it was not the Appellant’s delay.

[35] The learned Magistrate gave credit for good character, and age. She should have reduced the sentence further for the delay. The starting point for the rape of children is 10 years imprisonment. In this case the starting point picked was 7 years. Considerable leniency was already shown to the Appellant. The sentence was further reduced on the ground of his age. I consider that a further one year should have been deducted to reflect the 2 year delay before the case was heard.

[36] The appeal against sentence therefore succeeds. The sentence is reduced to 6½ years imprisonment, to run from the 30th of April 2008.

Nazhat Shameem
JUDGE

At Suva
23rd October 2008