Chand v State [2013] FJHC 63; HAA022.2012 (22 February 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA022 of 2012

BETWEEN:

DEWAN CHAND
Appellant

AND:

THE STATE
Respondent

Counsel: Mr. A Kohli for Appellant
Mr. M Malcolm for State

Date of Hearing: 10th January 2013
Date of Judgment: 22nd February 2013

JUDGMENT

[1] Following a trial in the Magistrates' Court the appellant was found guilty of indecent assault and defilement, and sentenced to a total term of 4 years' imprisonment. He was acquitted on two other counts of defilement. All charges involved the same complainant.

[2] This is an appeal against conviction.

Factual Background

[3] The complainant was born on 14 August 1996. In December 2007 she was a class 6 student at St. Augustine Public School and 11 years of age when the appellant allegedly indecently assaulted her (count 1). The appellant was a teacher at the same school. He is a married man with children. His wife was also a teacher in the same school when the allegations arose. The complainant and the appellant were also distantly related. The three alleged incidents of defilement (counts 2-4) took place between November 2008 and May 2009 at the complainant's home in Tabucola, Labasa.

[4] The complainant gave evidence that towards the end of the school term 2007, the appellant called her in another teacher's classroom. The complainant said that the appellant made indecent comments to her to the effect that her breasts were like mangoes and that he wanted to taste them. The complainant said she felt embarrassed and did not complain to anyone.

[5] During the December school holidays in the same year, the appellant went to the complainant's home. The complainant's parents were not present at home. The complainant said the appellant fondled her breasts, kissed her and touched her vagina inside her home. Following this incident the complainant said the appellant came to her home when her parents were away and they had sex on numerous occasions until 2009 when the appellant's wife questioned her. Subsequently, the head teacher came to know about the allegations and the matter was reported to the police.

Consideration of Grounds of Appeal
[6] I deal with the grounds of appeal in the order they were argued at the hearing of appeal. The first ground of appeal is that the learned trial Magistrate erred in law and in fact in convicting the appellant when there were numerous inconsistencies in the complainant's evidence.

[7] It is trite law that where a witness has made a statement which conflicted with his or her evidence, the court can only consider the evidence given on oath when considering guilt or innocence of an accused (Gyan Singh v Reginam [1963] 9 FLR 105; Hari Pal v Reginam [1968] 14 FLR 218; Bijai Prasad v Reginam [1984] 30 FLR 13). The previous inconsistent statement is of a limited use. The previous inconsistent statement may be used to consider whether the witness is believable. In examining the suggested inconsistencies, the court must first determine whether there is one, and whether it is material and relevant or, on the other hand insignificant or irrelevant. If there is an inconsistency, it may lead the court to conclude that the witness is generally not to be relied upon; alternatively, that a part of the witness's evidence is inaccurate; or the court may accept the reason the witness has provided for the inconsistency and consider the witness to be reliable.

[8] The first suggested inconsistency relates to the complainant's reason for not complaining to anyone about the appellant's comment of comparing her breasts to mangoes and wanting to taste them. In her examination in chief, the complainant said she was embarrassed to tell anyone. When cross-examined as to why she did not complain to her parents, she said the appellant threatened her not to tell anyone. She said she told the police about the threat but obviously she could not have explained why the threat was omitted when the police recorded her statement.

[9] This particular incident that took place within the school premises was not subject of any charge, but the evidence was led without any objection from the defence as background evidence of how the sexual relationship between the appellant and the complainant began. At the time this incident occurred the complainant was of a tender age. The appellant was in a position of control and power over her by virtue of his profession as a teacher in the same school. There was evidence that the complainant came from a poor background and that the appellant had enticed the complainant by giving her a mobile phone. Once episode led to another and over a period of time the complainant had accepted she was having a physical relationship with a teacher. All these matters were relevant in assessing the reason for the complainant to remain quiet about the allegations. In any event, the complainant's evidence was that she mentioned about the intial threat to the police. The fact that there was an omission in her statement about the appellant's threat could not be attributed to her as an inconsistency in the true context of that word.

[10] The second suggested inconsistency relates to the colour of the vehicle the appellant went on to the complainant's home when the first incident arose. The complainant said the appellant came in a red van. The appellant in his caution interview and in his evidence said in 2007 he did not own a red van but a blue vehicle. Clearly, the source of the suggested inconsistency is not the complainant. There was no inconsistency regarding the colour of the vehicle as far as the complainant was concerned. There were two versions of evidence regarding the colour of vehicle. One was the complainant's version, that is, the appellant came to her home in a red vehicle. The other was the appellant's version that he did not own a red but a blue vehicle at the time. The colour of the vehicle that the appellant owned was irrelevant as far as the indecent assault charge was concerned. Nor did it matter what mode of transport the appellant used to get to the complainant's home. A common sense approach should prevail when the court is faced with two versions of facts. It may be that the appellant owned a blue colour vehicle in 2007. But it is not necessary that he went to the complainant's home in his own vehicle when the alleged indecent assault took place in 2007. What was relevant was what transpired inside the complainant's home when the appellant arrived there. In that regard, the learned Magistrate believed the complainant and rejected the appellant's version that he did not commit the offence because he did not own a red vehicle at the time.

[11] The third suggested inconsistency relates to the acquitted counts 2 and 3. The complainant first said she could not recall her birthday in 2008. Later in her examination in chief, the complainant said the appellant had sex with her on her birthday, that is, on 14 August 2008. Under cross-examination, the complainant admitted she did not have sex with the appellant on 14 August 2008. The complainant was further cross-examined on omissions contained in her police statement regarding the dates and details of the incidents of sexual intercourse between her and the appellant.

[12] The appellant has not referred to any legal authority to support the contention that this Court has power to review inconsistencies relevant to the acquitted charges. Obviously, the suggested inconsistencies created a reasonable doubt in the mind of the learned Magistrate for him to acquit the appellant on counts 2 and 3. There is no logic in the submission that just because the learned Magistrate entertained a reasonable doubt in respect of two counts, the appellant should have been acquitted on all counts. As obliged by law, the learned Magistrate considered the evidence on each count separately. The evidence on each count, albeit, came from the same source, was different. There was no legal requirement that the verdict had to be same in respect to all the counts.

[13] The fourth suggested inconsistency relates to the date on which the complainant was defiled as charged in count 4. The charge alleged that the defilement took place on 26 May 2009. When the complainant gave evidence she did not come up to proof of the exact date but said the incident happened in 2009. She said the appellant gave her a ride in his vehicle from the school bus stand to her home where they had sex. Three other students gave evidence that they saw the appellant give the complainant a ride in his vehicle sometimes in 2009. The fact that the complainant and other witnesses did not come up to proof of the exact date of the defilement in 2009 was not fatal to the prosecution's case because the date is not an element of the offence requiring proof beyond a reasonable doubt.

[14] The second ground is that the learned Magistrate erred in law and in fact in not adequately and/or properly evaluating the evidence of the prosecution witnesses on one hand and that of the appellant and his witnesses on the other hand having regard to the charges in question and the evidence as a whole.

[15] This ground is merely an extension of ground one. Counsel for the appellant points out to numerous pieces of evidence which he submits is irreconcilable and casts doubt on the complainant's credibility. The prosecution witnesses, no doubt, were subjected to a lengthy and vigorous cross-examination. The complainant and three of her school colleagues, although were not of tender age, but were juveniles when they gave evidence. They gave evidence based on their memories of the events that took place more than two years ago. After taking all these matters into account, I am not persuaded that either taken individually or as a whole, the evidence relied on by the appellant in support of this ground of appeal affected the truthfulness of the complainant's evidence as they related to the convicted counts.

[16] The third ground is that the learned Magistrate was unfair when he caught the complainant lied in court in relation to the issue of vehicle registration number DW967 and believing her on other matters when he should have disregarded the whole of the complainant's evidence once she was caught lying in court.

[17] The appellant's submission that just because the learned Magistrate disbelieved part of the complainant's evidence her entire evidence should be rejected as incredible and unreliable cannot be sustained in law. The law is that the court may believe part of a witness's testimony and reject the rest. What is important is that the court should given reasons why the court is accepting or rejecting a witness's testimony, in part or in whole. Under cross-examination the complainant said that she was picked up by the appellant in a white vehicle with a registration number DW967 and then defiled at her home.

[18] The defence led evidence that the appellant did not acquire DW967 until 12 March 2009. The second and third counts were allegedly committed in 2008. The fourth count of defilement was allegedly committed on 26 May 2009. Although the complainant did not come to proof of the exact date, she gave evidence that she was defiled by the appellant sometimes in 2009. In 2009, the appellant owned the vehicle DW967. The Court cannot see any reason to criticize the learned Magistrate for rejecting the complainant's evidence on counts 2 and 3 and accepting her evidence on count 4.

[19] The fifth ground is that the learned Magistrate erred in law and in fact in unreasonably excluding the evidence of the appellant's wife without explaining the reasons.

[20] The appellant's wife, Mrs Chand gave evidence that in 2009 the appellant picked up the complainant twice in DW976 on her request. She was present in the vehicle with the appellant on both occasions. The learned Magistrate did not rely on Mrs Chand's evidence because she had a vested interest in the outcome of the case. Mrs Chand's evidence was of little probative value. She was only aware of two instances in 2009 when they gave the complainant a ride in their vehicle. She would not have known of instances if the appellant had picked up the complainant from the school bus stand without her knowledge. The learned Magistrate cannot be criticised for rejecting Mrs Chand's evidence.

[21] The sixth ground of appeal is that the learned Magistrate erred in law and in fact in taking irrelevant matters into account and not taking relevant matters into account in coming to his decision.

[22] The defence's strategy at the trial was to show that the allegations against the appellant were fabricated by the complainant with the support of the head teacher who harboured personal grudge against the appellant. In fairness to the appellant he was given wide latitude in cross-examination of the prosecution witnesses to elicit evidence to support the defence strategy. Further the defence called evidence from witnesses to show the "internal politics" that existed in the school when the allegations against the appellant arose. The prosecution called 11 witnesses. The defence called 6 witnesses including the appellant. The learned Magistrate had to scrutinize all the evidence before arriving at the crux of the matter. At the end of the day, it was her words against his. The learned Magistrate believed her and accepted her evidence on counts 1 and 4. On the evidence it was open for the learned Magistrate to convict.

[23] The final ground of appeal is that the learned Magistrate did not adequately and/or properly consider and/or misdirected himself on the issue of corroboration and onus and burden of proof and in particular having regard to Section 10 of the Juvenile Act.

[24] The appellant relies on the decision of this Court in State v AV [2009] FJHC 18 to submit that the learned Magistrate failed to remind the witnesses of the importance of telling the truth before he received their evidence. It was held in State v AV that section 10 of the Juveniles Act discriminated against children because of their age and deprived them the equality before the law. The Court went on to say that "if a child of tender age appears in court as a witness, the only obligation the magistrate or the judge has is to remind the child of the importance of telling the truth before receiving his or her evidence and that evidence should be assessed like the evidence of any other witness without the need for corroboration or a warning".

[25] In the present case, the witnesses including the complainant gave sworn evidence. The suggested reminder in AV does not apply to child witnesses if they give evidence on oath. Nor was the learned Magistrate required to look for corroboration to accept the complainant as a truthful witness. This ground fails.

Result

[26] For the reasons given in this judgment, the grounds of appeal have not been made out and the appeal against conviction should therefore be dismissed.

[27] The appeal is dismissed.

Daniel Goundar
JUDGE

At Labasa
22 February 2013

Solicitors:
Kohli & Singh for Appellant
Office of the Director of Prosecutions, Labasa for State