Dutt v State [2008] FJSC 7; CAV0003.2008S (23 July 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0003 OF 2008S
(Fiji Court of Appeal No. AAU0066 of 2005S)

BETWEEN:

HEM DUTT
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Ronald Sackville, Judge of the Supreme Court

Hearing: Wednesday, 23rd July 2008, Suva

Counsel: Petitioner in Person
Mr A. Elliott for the Respondent

Date of Judgment: Wednesday 23rd July 2008, Suva

JUDGMENT OF THE COURT

[1] On 19 November 2004 the petitioner was charged in the magistrates court at Nadi with offences of abduction, wrongful confinement and rape of his wife. They had been separated for a long time. He appeared for himself, elected trial in the magistrates court, and pleaded guilty to all charges. The offences which occurred on 27 October 2004 were the subject of prompt complaint to relatives and the police. The petitioner made repeated admissions noted in the record of the magistrates court.

[2] The magistrate sentenced him to 2 years imprisonment on the first and second counts and 6 years on the count for rape to be served consecutively making a total of 10 years. He appealed against his sentence to the High Court and was again self represented, and did not seek leave to withdraw his pleas of guilty.

[3] On 8 April 2005 Govind J allowed the appeal and re-sentenced the petitioner to a total of 9 years imprisonment. On 14 February 2006 the petitioner sought leave to appeal to the Court of Appeal out of time from his sentence, although some of his grounds appeared to challenge his conviction. Ward P, granted him leave to appeal limited to 2 grounds, the sentence imposed on the conviction for wrongful confinement and whether the rape of a wife by her husband is an offence known to the law in Fiji.

[4] At the hearing of the appeal he was represented by counsel from the Legal Aid Office. The Court of Appeal upheld his appeal against the 2 years sentence for wrongful confinement which exceeded the maximum of 1 year’s imprisonment under the Code.

[5] Despite having received extensive submissions on the appeal against conviction prepared by counsel for the Legal Aid office and the Director of Public Prosecutions the petitioner confined his appeal to the Court of Appeal from his conviction for rape to the question of his wife’s actual consent to sexual intercourse. Since he had pleaded guilty and his plea was unequivocal his appeal against conviction was dismissed.

[6] His appeal against sentence was allowed and he was re-sentenced to terms of imprisonment totalling 7 years thereby achieving a further reduction of 2 years in the total period he would spend in custody. The petitioner now seeks leave to appeal to this Court from his conviction and sentence. The petition does not raise any question of general legal importance or principle and there is no basis for finding that a substantial or grave injustice has occurred.

[7] In view of the petitioner’s pleas of guilty in the magistrate court and the High Court and the approach he adopted in the Court of Appeal in his appeal against the conviction for rape on the ground that his wife gave her actual consent to sexual intercourse this is not an appropriate case in which to consider whether or not the law of Fiji permits a husband to force sexual intercourse on his wife without her consent.

[8] The petitioner has also raised questions about Mr Shah, the magistrate who heard the cases against him and imposed the initial sentences. He has also raised questions about the findings of Connors J in his inquiry into the Magistrates Court.

[9] This Court cannot investigate the petitioner’s claims about the record in the magistrates court at Nadi raised here for the first time nearly 4 years after the event. The allegations are irrelevant in view of his pleas of guilty in the Magistrates Court the maintenance of those pleas in the High Court, and his challenge to his conviction for rape in the Court of Appeal. Accordingly the petition case is dismissed.

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon. Justice Ronald Sackville
Judge of the Supreme Court

Solicitors:
Petitioner in Person
Office of the Director of Public Prosecutions, Suva for the Respondent