Raj v State [2024] FJHC 648; HAM 238 of 2024 (17 October 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA SITTING IN BA
CRIMINAL JURISDICTION

MISCELLANEOUS ACTION NO. 238 OF 2024

BETWEEN:
RONEEL ROHITESH RAJ
APPLICANT

AND:
STATE
RESPONDENT

Appearances: Mr. P Sharma for the Applicant
Ms. S Naibe for the Respondent

Hearing date: 17^th October 2024
Ruling date: 17^th October 2024

RULING

1. The Applicant was charged for two counts of Rape and two counts of Sexual Assault in HAC 103 of 2021. The Applicant had pleaded not guilty to all the counts in the amended information on 25^th July 2022 and the matter proceeded to trial from 9^th September to 13^th September 2024. In a judgment of this court delivered on 25^th September 2024, the Applicant was found guilty and convicted for one count of Rape and two counts of Sexual Assault. He was found not guilty for one count of Rape and acquitted.
   
2. Whilst this matter was pending mitigation and sentence, the Applicant on 2^nd October 2024 filed this application via motion and affidavit to arrest judgment pursuant to section 239(1)(2)(3) and 242 of the Criminal Procedure Act 2009 and inherent jurisdiction of the High Court of Fiji.
   
3. The order sought from the Applicant as follows:
   
   1. That the Judgment delivered on file HAC No. 103/2021 dated 25^th September 2024 be reversed / quashed.
   2. That the Applicant / Accused be discharged and released from Custody.
   3. That the Conviction of the Applicant / Accused entered in the Judgment be quashed and Sentence be stayed.
   4. That any other Orders the Honorable Court may deem just and equitable.
      
4. Section 239 of the Criminal Procedure Act (CPA) 2009 stipulates as follows:
   1. The accused person may, at any time before sentence, whether on a plea of guilty or otherwise, move in arrest of judgment on the ground that the information does not does not, after any amendment which the court has made and had power to make, state any offence which the court has power to try.
   2. The court may, in its discretion, either hear and determine the matter during the same sitting, or adjourn the hearing of it to a future time to be fixed for that purpose.
   3. If the court decides in favour of the accused he or she shall be discharged from that information.
      
5. Further, section 242 of the CPA 2009 reads as follows:
   1. When any person has been convicted of an offence in a trial before the High Court, the judge may reserve for further consideration any question-
      1. which has arisen in the course of the trial; and
      2. the determination of which would affect the outcome of the trial.
   2. If the judge reserves any such question, the person convicted shall be remanded to prison or be admitted to bail pending the decision.
   3. Upon further consideration of a question reserved the judge may affirm or quash the conviction.
      
6. The Applicant in his affidavit at paragraphs 7, 13, 14 & 15 deposed as follows:
   7. THAT I can clearly recall that upon questioning by the Honorable Judge

in Lautoka High Court the state asked for an amendment of my information but it was never put to me in the due course as it was never amended but a trial date was set due to the states delay on the same and the same is consistent with the court records.

13. THAT I further state the information as I was charged upon was never put to me when my trial proper commenced on the 9^th September 2024.
14. THAT I am not aware as per which information I was tried on as it was never put to me and the state has never disclosed the same to me and it is not consistent with my Pre-Trial instructions to my solicitors as the officer in carriage from the state was not present multiple times and the same is consistent with the court records.
15. THAT I further state that I never took plea on the Amended Information reference is made from paragraph 9 or any such information which states two counts of Rape and two counts if Sexual Assault and I am not aware or have such knowledge as I have appeared in all my court dates of such an information which was extracted by my Counsel from the Lautoka High Court Registry after the Ruling for Adjournment dated 26^th March 2024 in reference with paragraph 8.
    

8. An application under section 239 of CPA 2009 in arrest of judgment can only be made on one ground: the information, after any amendments made by the court that it had the authority to make, does not state any offence that the court has the power to try.

9. The affidavit deposed by the Applicant does not adequately demonstrate to this court how the two counts of Rape under section 207 of the Crimes Act 2009 and Sexual Assault under section 210 of the Crimes Act 2009 are non existent in law.
   
10. Section 100(3) of the Constitution of the Republic of Fiji reads as follows:

“(3) The High Court has unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other original jurisdiction as is conferred on it under this Constitution or any written law.”

11. Further, the offences of Rape and Sexual Assault are both indictable offences and pursuant to section 4(1) (a) of the CPA 2009, they are triable in the High Court. The Applicant has failed to demonstrate that this court lacks the authority to try the two offences.
    
12. There is clearly no evidence indicating that the amended information to which the Applicant entered a plea of not guilty on 25^th July 2022 is flawed. The assertion made in the Applicant's affidavit that the amended information was never put to him is false. On 25^th July 2022, the record indicates that the Applicant, accompanied by his counsel Mr. A Chand, was present when the amended information was read and explained to him in Hindi. Upon comprehending the four counts, the Applicant entered a plea of not guilty.
    
13. Furthermore, in accordance with an application under section 242 of CPA 2009, the Applicant has not successfully identified any matter that has emerged during the trial that requires resolution by the court, which matter would influence the trial's outcome. This court has thoroughly addressed all material issues that needed determination during the trial in its judgment, and there are no outstanding matters left to resolve. I have no knowledge of any, and even if one exists, the Applicant has failed to bring it to the court's attention.
    
14. This application by the Applicant is frivolous and devoid of merit. The application is dismissed.
    

Samuela D Qica
Judge

High Court – Sitting in Ba
Thursday, 17^th October 2024