State v Ali [2010] FJHC 557; HAA56.2010 (10 December 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA56/2010

BETWEEN:

THE STATE
Appellant

AND:

REHAN ALI
Respondent

Counsels: Ms. Tikoisuva - For Appellant
Mr. O'Driscoll - For Respondent

Date of Hearing : 12/11/2010, 9/12/2010
Date of Summing Up : 9/12/2010
Date of Judgment : 10th December, 2010

JUDGEMENT

This is an appeal by The State against a decision by the Magistrate to acquit the Respondent.

Firstly I set out the history of the matter.

On the 11th October 2006 the Respondent was charged with 3 offences of defilement of a girl aged between 13 and 16 years. On the 27th March 2009 amended charges were filed by the State; in effect, for the charges of defilement the State substituted allegations of rape relating to the same complainant and the same alleged incidents.

On the 3rd July 2010 the trial took place before the Magistrate. The State called 5 witnesses including the complainant, clearly a reluctant witness; the Respondent did not give evidence but called 3 witnesses in his defence. The Magistrate delivered judgement on the 8th September acquitting the Respondent on each charge. It is clear from the judgement that the Magistrate was sure that sexual intercourse had taken place between the Respondent and the complainant but was not sure that all the ingredients of the offence of rape had been proved, notably proof of the absence of consent. This court does not in any way depart from the view of the facts taken by the Magistrate.

The complaint advanced by the State is that the Magistrate, having reached the conclusion that she was sure intercourse had taken place, did not direct herself to consider the kindred offence of defilement and, if she had, she would have found the Respondent guilty.

Accordingly this Court is asked to exercise the powers vested in it to substitute verdicts of guilty of defilement for the verdicts of not guilty reached by the Magistrate.

It is necessary to look at the powers vested in this court and then to consider whether on the facts of this particular case it would be just to exercise those powers.

Section 162(1) (f) of the Criminal Procedure Decree 2009 states that:

(1) Where a person is charged with an offence but the court is satisfied that the evidence adduced in the trial supports a conviction only for a lesser or alternative offence, the court may record a conviction made after due process for:

(f) any sexual offence where the charge has been for rape.

In the case of Ali v State (2008) FJCA 30 the Appellant was convicted of defilement on appeal; he appealed to the Court of Appeal and the Court posed this question:

"This ground of appeal presents a question of law. The question is whether the High Court in its Appellate jurisdiction could convict of the kindred offence of defilement contrary to section 156 of the Penal Code without giving the accused an opportunity to raise the statutory defence provided by that section?"

They further stated:

"The powers of the High Court on appeal are wide. The court may make such other order in the matter as to it may seem just, and may by such order exercise any power which the magistrates' court might have exercised. We therefore conclude that the High Court has the power to convict of the kindred offence of defilement and on appeal against acquittal on a charge of rape, pursuant to section 176 of the Criminal Procedure Code, provided no injustice is caused to the accused by such order".

They then stated:

"Whilst the High Court had the jurisdiction to convict the appellant for defilement the power could only have been exercised if it may have seemed just. The Appellant, who was led to believe by the prosecution that he only had a rape charge to defend, after an acquittal of that charge, was convicted on appeal for defilement without being notified of an available statutory defence, lead us to conclude that we cannot rule out the possibility of injustice being done to the appellant".

The case of Ali is entirely in point in relation to this appeal and the possibility of injustice test is clearly relevant on the facts of this particular case.

The accused was not represented in court below; he chose to conduct his defence to the charge of rape on the basis that sexual intercourse had never occurred. In connection with this appeal Counsel has referred to S. 215 of the Crimes Decree No. 44 of 2009 and, in particular, to S. 215(2) which sets out the statutory defence available to an Accused in response to an allegation of defilement.

I have no means of knowing what the Respondent's defence might have been had he been facing allegations of defilement, or, if had he been made aware that this was a kindred offence for which he might be convicted. I cannot assume that he would not have run, either alone or in tandem, the statutory defence that would have been available to him, namely, that he believed on reasonable grounds that the complainant was over 16 years of age. She was in fact 15 and a schoolgirl, but those facts would not have prevented him from running the statutory defence. There was certainly no admission by the Respondent that he knew her age; all that he admitted was knowledge that she was a schoolgirl.

Accordingly, it would not be right to conclude that the statutory defence would not have at the very least been available to the respondent.

The question of a kindred offence was never raised by the State, nor was it raised by the Magistrate. There was complete silence in the court below as to the availability of the kindred offence.
In those circumstances it would be quite unjust to substitute verdicts of guilty of defilement; the only course therefore open to this court would be to send the case back to the magistrate for a retrial on allegations of defilement

In relation to that submission, the case is now 4 ½ years old and the interests of justice tests need to be considered.

If the case is to be remitted to the Magistrates' court for a re- trial on charges of defilement there will inevitably be some further delay before the case is listed. The alleged complainant is now probably 20 years of age and it is highly unlikely that she has any more interest now in this case than she had at the time of the first trial, judging by her attitude and responses at the time; they were certainly not favourable to the State's case .

This court has to take a view as to whether, applying the interests of justice test, it would be right to send the case back for a retrial. In my judgement, neither the interests of justice test nor the public interest test is served by that course being taken.

Accordingly I do not direct to the case be returned to the Magistrates' court; the appeal by the state is refused the verdicts of not guilty stand and the matter is now closed.

Graham Cottle
JUDGE

At Suva
10th December, 2010