Prasad v State [2019] FJSC 3; CAV0024.2018 (25 April 2019)

IN THE SUPREME COURT OF FIJI
[CRIMINAL APPELLATE JURISDICTION]

CRIMINAL PETITION No: CAV 0024 of 2018
[On Appeal from Court of Appeal No: AAU 0010 of 2014]

BETWEEN : ROHIT PRASAD

Petitioner

AND : THE STATE

Respondent

Coram : Hon. Mr. Justice Brian Keith, Judge of the Supreme Court
Hon. Mr. Justice Priyasath Dep, Judge of the Supreme Court
Hon. Mr. Justice Frank Stock, Judge of the Supreme Court

Counsel : Ms. S. Nasedra for the Petitioner

Mr. S. Babitu for the Respondent

Date of Hearing : 12 April 2019

Date of Judgment : 25 April 2019

JUDGMENT

Keith, J

Introduction

1. A common feature of cases of sexual misconduct with girls relates to the behaviour of the girl shortly after the incident in question. She may well tell someone what happened to her. It will often be a family member or a friend. The family member or the friend will then give evidence of what the girl told them. The status of that evidence is well established. It cannot be treated as evidence of the facts complained of. In other words, it cannot be treated as corroboration of the girl’s account of what was done to her. It can only show that the girl’s account in court is consistent or inconsistent with what she was saying shortly after the incident. Putting it another way, if it is consistent with her account, it negatives any suggestion that the girl has only recently made up the account she has given in court. In this case, it is accepted that the trial judge wrongly directed the assessors about the status of this kind of evidence, and one of the issues which this appeal raises is whether the convictions of the applicant can nevertheless be upheld on the basis that, to use the words of the proviso to section 23(2) of the Court of Appeal Act 1949, “no substantial miscarriage of justice has occurred” (“the proviso”).
   
2. The applicant is Rohit Prasad. I intend no discourtesy to him if from now on I refer to him by his family name for convenience. He was charged with two offences of rape. The girl was his stepdaughter. She was 13 years old at the time. He pleaded not guilty to both counts. The assessors unanimously expressed the opinion that Prasad was guilty on both counts. The judge agreed, and accordingly convicted Prasad on both counts. He sentenced Prasad to 12 years and 9 months imprisonment on each count to be served concurrently with each other, making 12 years and 9 months imprisonment in all, with a non-parole period of 12 years. Prasad’s appeal to the Court of Appeal against both conviction and sentence were dismissed, and he now applies for leave to appeal against conviction to the Supreme Court.
   

The evidence

3. The girl’s account was that in April 2011 she was living with her mother and Prasad in Sigatoka. One afternoon at about 2.30 pm while she was looking after her baby brother and her mother was out, Prasad came up to her, pushed her onto the bed, took her clothes off and some of his own, and forced her to have sexual intercourse with him. He put his hand over her mouth so that she could not call for help. It lasted for 10-15 minutes, and afterwards he told her that that if she told anyone what had happened he would kill her. That threat caused her not to tell her mother when her mother came home later that afternoon. Indeed, the girl’s evidence was that she was too frightened to tell any family member about it. Count 1 related to that incident.
   
4. By July 2011 the family had moved to a farm in Rakiraki. One afternoon at about 2.00 pm, while the girl was looking after her baby brother and her mother and Prasad’s parents were in the garden, Prasad asked her to get him a cup of tea. When she brought it to him in his room, he pushed her onto the bed, took her clothes off and some of his own, and forced her to have sexual intercourse with him. Once again, he put his hand over her mouth so that she could not call for help. It lasted for 15-20 minutes. He then went into the garden. The girl did not tell her mother or Prasad’s parents what had happened. Her evidence was that he had said that he would kill her if she did, though it is unclear whether she was saying that Prasad was repeating the threat he had made previously, or whether she was explaining that her reason for not telling anyone about it was because of the previous threat he had made. Count 2 related to that incident.
   
5. The following day she decided to report what had happened to the police. She was on her way to the police station when an employee of the Fiji Sugar Corporation, Vicky Rafiq, saw her. His evidence was that she looked distressed, so he decided to talk to her, even though they did not know each other. She told him that she had been raped by her stepfather and “wanted to get her medical done”. So he took her to Nawala Police Station. Her evidence was that she was then taken to Rakiraki Police Station and then taken to Rakiraki Hospital where she was examined by a doctor.
   
6. Prasad’s evidence was that none of this had ever happened and that the girl was lying. She had been put up by her grandparents to “frame” him. He accepted that he had been at home on the first occasion when the girl claimed that she had been raped and that his wife had been out, but he denied that sexual intercourse (and presumably any other sexual activity, though he did not say that in so many words) had taken place.
   
7. As for the second occasion, he said that he had been out of the house at 2.00 pm checking his truck as it was harvest time, but he had had a slight headache and had gone to his room at about 3.00 pm to sleep for a while. He accepted that he had asked his stepdaughter for a cup of tea, but denied that anything untoward had happened between them. It is a little difficult to tell from the judge’s notes what Prasad was saying about whether anyone else had been in the house at the relevant time, though his mother gave evidence that Prasad had gone somewhere at about 1.30 pm, that he had returned at about 2.00 pm and had had lunch somewhere, that “we” had gone out to the farm at about 3.00 pm, and that “we all” had come back from the farm at 5.30 pm. The evidence of Prasad’s father was that Prasad had not been at home between 1.30 and 3.00 pm, and that when Prasad had returned at 3.00 pm, all the family had been at home, and he (Prasad’s father) had then left for the farm.
   

The allegation to Vicky Rafiq

8. The requirement for corroboration in cases of a sexual nature was abolished by section 129 of the Criminal Procedure Decree 2009. However, since the trial was taking place in 2014, it was sensible for the trial judge to tell the assessors that. They may have thought otherwise. He did so in para 53 of his summing-up, which reads:
   

“Please remember, there is no rule for you to look for corroboration of the victim’s story to bring home an opinion of guilty in a rape case. The case can stand or fall on the testimony of the victim depending on how you are going to look at her evidence. You may, however, consider whether there are items of evidence to support the victim’s evidence if you think that it is safe to look for such supporting evidence. Corroboration is, therefore, to have come from some independent evidence to support the victim’s story of rape.”

9. The effect of this passage was that the assessors were being told that they could conclude that Prasad was guilty even if there was no corroboration of the girl’s account. But they could also take into account such corroboration of her account as there was in deciding whether her account was true. That meant that the judge had to explain to the assessors what evidence was capable of amounting to corroboration. The help he gave them was that it was “independent evidence” which supported her account. That was entirely correct, but some explanation of what “independent” meant in this context was required. It did not mean that the evidence had to come from someone who was independent in the sense that they did not know the girl and therefore had no axe to grind. It meant that the evidence had to be independent of the girl. In other words, she could not be the ultimate source of the evidence if the evidence was to amount to corroboration of her account.
   

10. It is here that the judge went astray in his summing-up. His summing-up included a reminder to the jury of the evidence of each of the witnesses. After giving an accurate summary of the evidence of Mr Rafiq, the judge said at para 38:

“[Mr Rafiq] is an independent witness. He corroborates the version of the complainant. If you believe this witness’s evidence beyond reasonable doubt there is evidence of recent complaint in respect of the last incident on 27.7.2011.” (Emphasis supplied)

The last sentence on its own is unobjectionable. If the assessors accepted Mr Rafiq’s evidence, it meant that the girl was alleging on the following day that she had been raped by her stepfather. The question was what the assessors could use that evidence for. The judge answered that in the previous sentence: it corroborated the girl’s account. But the girl’s account of what? Of what she had told Mr Rafiq? Or of what her stepfather had done to her? The judge did not say. The fact that he referred to “recent complaint” in the next sentence could just mean, I suppose, that the judge had the former in mind, in which case what he told the assessors would have been unobjectionable. But the assessors could not have known what the judge had in mind, and we must therefore proceed on the assumption that they would have thought that the the judge was saying that what the girl had told Mr Rafiq corroborated her account of what her stepfather had done to her.

11. And then there was the judge’s reference in the first sentence to Mr Rafiq having been an independent witness. Mr Rafiq was, of course, an independent witness in the sense that he had never known the girl and therefore had no axe to grind. But his evidence was not independent of the girl. On the contrary: he was merely relaying what the girl had told him. All of this means that it would be very surprising indeed if the law regarded what the girl told Mr Rafiq as amounting to corroboration of her account of what her stepfather had done to her.
    
12. As one would expect, the law does not regard this as corroboration. In Anand Abhay Raj v The State [2014] FJSC 12, Gates P said at para 33:
    

“...evidence of recent complaint was never capable of corroborating the complainant’s account: R v Whitehead [1929] 1 KB 99. At most it was relevant to the question of consistency, or inconsistency, in the complainant’s conduct, and as such was a matter going to her credibility and reliability as a witness: Basant Singh & Others v The State Crim App 12 of 1989; Jones v The Queen [1997] HCA 12; Vasu v The State Crim App AAU0011/2006S.”

13. In other words, Mr Rafiq’s evidence that the girl had told him that she had been raped by her stepfather was not evidence which supported the truth of what the girl was saying. Its only relevance was that it showed that the account which the girl gave in court was not one which she had only given recently. Her account in court was consistent with what she had said shortly after the second incident which had given rise to the charges. That meant, of course, that the judge’s comment to the assessors that Mr Rafiq “corroborates the version of the complainant” was a serious misdirection, as the Court of Appeal rightly acknowledged. The assessors would have been under the impression that they could treat what the girl had told Mr Rafiq as corroborating her allegation that Prasad had raped her.
    
14. In defence of the judge, it should be said that he cannot be criticised for not following Anand Abhay Raj. The judgment in Anand Abhay Raj was handed down on 20 August 2014, some months after the judge summed the case up to the assessors. But Anand Abhay Raj was merely restating – albeit from the most authoritative source in Fiji – the established position of the common law, including the authorities cited by Gates P.
    
15. Of course, it was not the assessors who convicted Prasad. It was the judge. The assessors merely expressed the opinion that Prasad was guilty on both counts. One therefore has to look at the judge’s judgment to see whether, in considering the evidence, he repeated his mistake or whether he corrected his error. As it is, he did not correct his error. In para 3 of his judgment, he said: ‘’I direct myself in accordance with the law and the evidence which I discussed in my summing up to the assessors.” He was therefore treating what the girl had said to Mr Rafiq as corroboration that Prasad had raped her. As I have said, that was wrong.
    
16. Whilst acknowledging that this was a serious misdirection, the Court of Appeal took the view that no substantial miscarriage of justice had occurred. Its reasoning is contained in para 23 of the judgment of Prematilaka JA, which reads:
    

“In terms of section 129 of the Crimes Decree 2009 (now Crimes Act 2009) no corroboration of the complainant’s evidence, irrespective of the age, is necessary for the accused to be convicted and no warning to the assessors is also required to be given relating to the absence of corroboration. A large body of judicial decisions of the Court of Appeal and the Supreme Court has unequivocally affirmed this position. Therefore, the direction to the assessors that Vicky’s evidence corroborates the complainant’s version should have had little negative impact on the Appellant as the Trial Judge has also directed that corroboration is to have some independence evidence to support the victim’s story and there is no rule for the assessors to look for corroboration of the victim’s story to bring home a verdict of guilty in a rape case and the case stands or falls on her testimony. Thus, the assessors may not have treated Vicky’s evidence as corroborative of the complainant’s version as the source of that evidence as to who raped came from the complainant herself.”

17. I regret that I cannot go along with this reasoning. The assessors were told that corroboration of the girl’s account was not a requisite for a finding of guilt in a case of rape. They could find her guilty on her evidence alone. That was in para 53 of the summing-up. So far, so good. But the assessors were also told that there was corroboration of the girl’s account which they could take into account. That corroboration consisted of what the girl had told Mr Rafiq. That was in para 38 of the summing-up. You cannot get away from the error in para 38 by saying that the assessors would have realised that what the judge said was corroboration was in truth not corroboration at all, just because the judge also told the assessors in para 53 of the summing-up that corroboration was “some independent evidence to support the victim’s story”, thereby leaving it to the assessors to figure out that this was not corroboration because the girl was the source of that evidence. Not only did the judge tell the assessors that this was corroboration, but if the jury was to work out for themselves that it was not corroboration, the judge had to tell the assessors that corroboration did not only mean evidence which came from a witness who was independent in the sense that he did not know the girl, but that his evidence was independent of the girl in the sense that she was not the source of it. As I have said, the judge did not do that.
    

The medical report

18. The doctor who examined the girl at Rakiraki Hospital was Dr Haimono. She prepared a written report of that examination. However, she was not called to give evidence at the trial because she was overseas. Instead, another doctor produced the report. That was Dr Alunita. Since Dr Alunita had not examined the girl herself, she could not say what the physical examination of the girl by Dr Haimono had revealed without infringing the rule against hearsay: see, for example, Tuilagi v The State [2018] FJSC 3 at para 55. This is a not uncommon problem in Fiji: the doctor who examines the patient and prepares a report is unavailable to attend court when the trial takes place. The solution which Fiji has devised to overcome this problem was discussed in Naulumosi v The State [2018] FJSC 27 at paras 2 and 28-30. In effect, section 133 of the Criminal Procedure Decree permits the report to be produced provided that two conditions are satisfied: the report has been served on the defence not less than 21 clear days before the trial, and the defence have not required the original doctor to attend the trial.
    
19. The report was in the disclosures filed in the Registry on 12 October 2011. But Prasad was unrepresented at all times. His application for legal aid had been refused, and an appeal against that refusal had been dismissed. So the disclosures had to have been served on him. His trial began on 18 March 2014, so the disclosures had to have been served on him at least 21 clear days before then. When all this was pointed out to Ms Nasedra for Prasad, she took Prasad’s instructions. He accepted that the disclosures had been served on him some time before the trial. And he accepted that he had not notified either the court or the prosecution that Dr Haimono was required to attend court, adding that he did not know he could have done that. In the circumstances, Dr Haimono’s report was admissible even though she was not being called as a witness.
    
20. Before I turn to the criticism of how the judge summed up the report to the assessors, it is necessary to say what the effect of the report was. No injuries of any kind were observed on physical examination: there was no bruising on the girl’s body; no lacerations were seen in the vaginal wall; and no bleeding was observed in the vagina. But as Dr Alunita said, that did not mean that sexual intercourse had not occurred. Sexual intercourse can take place without causing any injury. The only other finding of relevance was that the girl’s hymen was not intact. That could, of course, have been the consequence of vaginal sexual intercourse, but the judge’s note of Dr Alunita’s evidence on this point was:
    

“Hymen not being intact could have been caused by penetration of any object or vigorous physical activity such as athletics could also have caused this.”

21. One other feature of the report should be mentioned. When Dr Haimono referred to the girl’s hymen not being intact, she added the words “indicating loss of virginity”. In the box marked “Professional Opinion”, she wrote: “Not the first sexual contact”. And in the box marked “Summary and conclusions”, she wrote that the fact that the hymen was not intact “indicat[ed] sexual penetration. But this is not the first incident.” Two things need to be said about these statements. First, her statement that the rupturing of the hymen indicated “sexual penetration” is ambiguous. It is not clear whether she meant that sexual penetration was likely to have been the cause of the hymen rupturing, or whether she was saying that the rupturing of the hymen was simply consistent with sexual penetration, so that it could have occurred in some other way. The fact that she also referred to the rupturing of the hymen as indicating “loss of virginity” suggests that she might have had the former in mind, but it is impossible to tell. The difficulty is that her non-attendance at court meant that she could not be asked to resolve that ambiguity in her report. Indeed, in view of Dr Alunita’s evidence, it may well be that she would have agreed that what had caused the hymen to be ruptured could have been one of the many physical things like sports which girls naturally get up to when they are growing up. It was left to Dr Alunita to enlighten the court that the rupturing of the hymen does not necessarily mean that the girl was either the victim of, or a participant in, penetrative sexual activity.
    
22. Secondly, there is Dr Haimono’s statement that “this is not the first incident”. That is also ambiguous. Dr Haimono might have been saying that, if the girl’s hymen had been ruptured in the course of vaginal sexual intercourse, the incident the previous day was unlikely to have been the occasion when it was ruptured. Alternatively, she could have been saying that the nature of the rupture to the hymen meant that it had been penetrated more than once. Again, we do not know which of these two possibilities Dr Haimono had in mind.
    
23. The upshot of all that is this. The most that can be said is that the girl’s account of how her stepfather behaved towards her was not inconsistent with the findings of the physical examination of her. But it was not capable of supporting her account, of course, because the findings were just as consistent with her hymen having been ruptured otherwise than in the course of sexual intercourse.
    
24. The judge dealt with all this in his summing-up as follows (I leave out those passages which are not material for present purposes):
    

“29. Prosecution called Doctor Alunita as the first witness ... She is not the person who examined the victim ... She ... tendered [Dr Haimono’s] report ... [The complainant] had given a history of being raped by the step father on 27.7.2011. It was not the first incident of Rape. She was raped earlier by the same person in April 2011. She said that second sexual intercourse could take place without leaving any injuries. Her hymen was not intact. The professional opinion is that the vaginal examination indicated that hymen is not intact indicating sexual penetration. But this was not the first incident.

30. Under cross examination, she was asked whether she could tell when the complainant was raped first. She answered ‘no’...

25. The difficulty with this summary of the medical evidence is that it could have left the assessors with the impression that the evidence was that the only way in which the girl’s hymen could have been ruptured was through penetrative sex. Look what the judge said: the fact that the hymen was not intact “indicat[ed] sexual penetration”. It is true that that was what the report said, but I have already referred to (a) the ambiguity in the language which Dr Haimono used and (b) the inability to resolve that ambiguity by the unavailability of Dr Haimono to give evidence at the trial. But leaving all that aside, the real vice is that the judge did not remind the assessors of the critical evidence of Dr Alunita about a girl’s hymen being capable of being ruptured otherwise than through penetrative sex.
    
26. The problem does not end there. Having summarised the medical evidence in the way he did, the judge then went on to tell the assessors the following in para 31 of his summing-up:
    

“The doctor is an independent witness. If you believe her evidence there is corroboration on sexual intercourse. However, there are no injuries. The doctor is not the person who examined the victim. She was giving evidence on a report prepared by another doctor. Before attaching any weight to this evidence you have to keep these factors in mind.” (Emphasis supplied)

The doctor who the judge was referring to was Dr Alunita. That is plain from the third sentence in that passage. The one thing which emerged from Dr Alunita’s evidence was that the medical evidence did not amount to corroboration that the girl had had sexual intercourse. Her evidence, as I have said, was that the girl’s hymen could have been ruptured otherwise than through penetrative sex. The bottom line here is that the fact that the girl’s hymen had been ruptured was consistent with her stepfather having had sexual intercourse with her, but it could not amount to corroboration that he had had sexual intercourse with her, because as Dr Alunita accepted (but which the judge omitted to remind the assessors) the rupturing of the girl’s hymen could have been caused in some other way. It follows that the direction which the judge gave the assessors that the medical evidence amounted to corroboration that someone had had sexual intercourse with the girl was wrong. It was consistent with someone having had sexual intercourse with her, but no more.

27. The Court of Appeal took the view that there was nothing wrong with this direction. It said that the lack of injuries really proved nothing. Maybe the girl chose not to resist, preferring to submit to what her stepfather was doing, than struggle and thereby risk something worse. I agree with that. But the Court of Appeal thought that the fact that the girl’s hymen was not intact amounted to corroboration that she had had sexual intercourse because she “had been identified as having had sexual intercourse before, for she had already lost [her] virginity”. That is a circular argument, and is in any event undermined by Dr Alunita’s evidence about the ways a girl’s hymen can be ruptured otherwise than by penetrative sex. The Court of Appeal sought to answer that by saying in para 28 of its judgment that “there was no evidence at all that the complainant had indulged in any vigorous activity such as athletics that could have accounted for the loss of virginity and therefore, the Trial Judge was not required to direct the assessors on such a hypothetical possibility.”
    
28. I cannot go along with this. You cannot ignore the possibility that the girl’s hymen had been ruptured in the course of some strenuous physical activity simply because she did not give evidence about that. There was still the possibility that that might have happened. In any event, I do not think that one can read the judge’s note of Dr Alunita’s evidence on the topic as amounting to a statement that vigorous physical activity was the only circumstance which might cause the hymen to rupture otherwise than by penetrative sex. At least another was “penetration by any object”, and you cannot discount the possibility that Dr Alunita was only giving a non-exhaustive list of examples of how the hymen might be ruptured otherwise than by penetrative sex. In the circumstances, I do not agree with the Court of Appeal’s rejection of the complaint that the judge wrongly directed the assessors that the medical evidence afforded corroboration that someone had had sexual intercourse with the girl. The evidence was consistent with someone having had sexual intercourse with her, but the evidence did not support it.
    

The lack of legal representation

29. As I have said, Prasad was not represented at his trial as he did not get legal aid. Things have changed since then. Anyone charged with a serious offence is now granted legal aid if they apply for it, but at the time of Prasad’s trial limited resources meant that not everyone who applied for legal aid would be granted it. The lack of legal representation is said to have disadvantaged Prasad in two particular ways. A lawyer would have been able to cross-examine the girl to greater effect, and could have pointed out to the judge the errors in his proposed directions to the assessors on corroboration.
    
30. The Court of Appeal did not discuss the first of these two possible disadvantages. It rejected the second on the basis that a proper direction on corroboration would have made no difference to the outcome of the case. It added that Prasad’s account carried very little credibility, and that the process was entirely fair. At all times his rights had been explained to him by the judge; he always confirmed that he understood what was happening when the judge asked him that; and he had whatever time he needed to prepare for the trial and during it.
    
31. This is not the time to rehearse the many cases which say that legal representation is not an absolute right in Fiji. For my part, I approach cases of this kind by asking whether the defendant’s right to a fair trial has been infringed. That turns on whether, to use the language of the Court of Appeal in Drotini v The State (Criminal Appeal No: AAU 0001/2005) at para 11, and cited with approval in Ramalasou v The State (Criminal Appeal No: AAU 0085/2007) at para 9, “there is a possibility that [the defendant] was adversely prejudiced by his lack of representation”.
    
32. In my view, a relatively persuasive argument could be mounted that Prasad was adversely affected by the fact that he did not have a lawyer to cross-examine the girl. This was classically a case of his word against hers. The difference between their two accounts was so big that it could not be attributable to a mistake on the part of one of them. One of them was lying. And in cases of this kind – an allegation of sexual misconduct where there is no supporting evidence of any kind – the first question which the fact-finders are very likely to ask themselves is: why would the complainant lie? To be fair, Prasad was alive to that. Although the burden of proof was not on him, he knew that realistically he would have to come up with a reason for the girl telling what he claimed were lies about him. That was why he said that that the girl’s grandparents had wanted to “frame” him and had presumably persuaded the girl to say that he had raped her.
    
33. But this was never really explored in the evidence. All he had said about this in his own evidence was that the girl had told him that she had been “sent’’ by her grandparents to “frame” him. He did not say in his evidence why they might have wanted to frame him, but when questioning the girl – you could hardly call the few questions he asked of her cross-examination – he had suggested that it was because they wanted his wife and him to separate. But that was all. Nothing else was said about that in the course of the trial. What might have been expected to have been at the heart of the trial – why was the girl lying? – was hardly mentioned. It gave the trial – to my thinking at least – a real sense of unreality. One might have expected all this to have been much more to the fore of the trial if Prasad had been legally represented. Having said all that, though, this is not a topic on which I need to reach a concluded view in the light of my opinion about the other grounds of appeal.
    

The application of the proviso

34. The final question is whether, despite the errors which the judge made about corroboration, the proviso should be applied on the basis that “no substantial miscarriage of justice has occurred”. The errors which the judge made were fundamental, but that does not necessarily mean that the proviso should not be applied. The question is whether the judge might have acquitted Prasad if he had appreciated that there was no corroboration of the girl’s account? He obviously regarded the girl’s encounter with Mr Rafiq as important because he referred to that specifically in his judgment, and when he said the he was rejecting Prasad’s evidence, he said that he was doing so in the light of all the evidence, including the medical evidence. So he clearly regarded the facts that (a) she had told Mr Rafiq that she had been raped by her stepfather and (b) her hymen had been ruptured as significantly supporting her account – when in truth they were no more than simply consistent with her account. I cannot say what the judge would have concluded if he had given these facts the much more limited evidential weight they deserved, and in the circumstances I cannot say that no substantial miscarriage of justice has occurred.
    

Conclusion

35. For these reasons, I would give Prasad leave to appeal against his conviction on the basis that a substantial and grave injustice may otherwise occur. In accordance with the Supreme Court’s usual practice, I would treat the hearing of the application for leave to appeal as the hearing of the appeal. I would allow the appeal, and I would quash the convictions on the two counts which Prasad faced.

36. The question then arises as to whether we should order a retrial. When we asked Mr Babitu for the State whether the State would be asking for a retrial if the appeal succeeded, he understandably said that the matter would have to be referred to the Director of Public Prosecutions. I entirely understand why that should be. In the normal course of events, a retrial would follow where a conviction was quashed because of flaws in the summing-up. But all this happened eight years ago. The girl and her family will have moved on. She will obviously not want to return to court to give her evidence all over again, and given the choice of doing that or letting matters lie where they now are, she may choose to leave things be. In any event, Prasad has been in prison for a number of years. In the circumstances, I would order the retrial of Prasad on the two charges he faces, but I would leave it to the Director of Public Prosecutions to decide whether to proceed with the trial or offer no evidence once the girl and her family have been consulted over what their preference may be. In the meantime, I would order that Prasad must remain in custody. Having said that, matters should not be allowed to drift. The momentum should be maintained. I would order the Director of Public Prosecutions to notify the High Court Registry within 28 days of today whether the State will be proceeding with the trial. If it decides not to, the case should then be listed in the High Court as soon as possible for the State to offer no evidence and for Prasad to be released.
    

Postscript

37. Prasad was also applying for leave to appeal against his sentence. When Miss Nasedra stood up to open the appeal, she told us that Prasad had decided to abandon his appeal against sentence. That was not the first time that this has happened during the current session of the Supreme Court, and a sudden outbreak of appeals against sentence being abandoned suggests that something is in play here. The answer, I suspect, is the recent exercise by the Supreme Court in Aitcheson v The State [2018] FJSC 29 of its power^[1] to increase sentence on the hearing an application for leave to appeal against sentence, and its refusal to permit the applicant to abandon his application in order to avoid that consequence. Indeed, Miss Nasedra told us that the fear of his sentence being increased was one of the reasons why Prasad wished to abandon his application for leave to appeal against sentence. In the circumstances, we were prepared to permit the application for leave to appeal against sentence to be abandoned, but I wish to add a few words of my own about three aspects of the practice which the Supreme Court adopted in Aitcheson.

38. First, appeals against sentence which the Court thinks might have merit may nevertheless be abandoned because the strength of the appeal might not be apparent to the appellant and his advisers, and they fear that pursuing the appeal might result in the exercise by the Court of its power to increase sentence. It would be a failure of the criminal justice system if that turned out to be the case. The present case is an example of just that. For the reasons given in another judgment of the Supreme Court being handed down today, Timo v The State (Criminal Petition no: CAV 22 of 2008), Prasad may well have been able to argue that the proximity of the non-parole period to his head sentence was such as to warrant interference by the Supreme Court. Now that his convictions have been quashed, that is not a problem which arises in his case, but the danger of meritorious appeals being abandoned is nevertheless something which needs to be addressed.
    

39. Secondly, it sometimes happens in the Court of Appeal that the court is minded to increase the sentence passed by the trial judge. A practice has grown up in the Court of Appeal to warn an appellant that that is what the court is considering, and to allow the appellant to abandon his appeal. So far as I know, no such practice exists in the Supreme Court when the Supreme Court is minded to increase the sentence. That can only be because it is a power which is rarely, if ever, exercised, and there has been no opportunity for such a practice to develop. The Supreme Court must have taken the view in Aitcheson that such a practice should not apply to the Supreme Court, but it did not say why. Some people might say that, in the interests of fairness to applicants, the practice adopted by the Court of Appeal is preferable. It may be that the Supreme Court will want to consider this again in an appropriate case.

40. Thirdly, there is another reason why the applicant in Aitcheson might have felt hard done by. There was a particular reason why the Legal Aid Commission which was providing representation for the applicant in Aitcheson would not have contemplated the possibility that his sentence would have been increased. Aitcheson was a rape case involving young children. There was in the same session of the Supreme Court another appeal in a rape case involving a young child (Kumar v The State [2018] FJSC 30) in which the Director of Public Prosecutions had specifically asked the court, pursuant to section 6(1) of the Sentencing and Penalties Decree 2009, to review sentences for the rape of children and juveniles and to give a guideline judgment on the topic. No such request under section 6 was made in Aitcheson. Accordingly, the Legal Aid Commission could confidently expect that if the tariff for sentencing in rape cases involving children and juveniles was to be increased as a result of any guideline judgment which the court chose to give in Kumar, it would not apply to the applicant in Aitcheson – not least because counsel for the State in Kumar (who also represented the State in Aitcheson) expressly conceded that if the court gave a guideline judgment increasing the tariff for sentencing in rape cases involving children and juveniles, the new tariff should only apply to offenders whose offences took place after the promulgation of the court’s judgment. Otherwise, the new tariff would be applied retrospectively, and some people might say that that would not only be unfair to accused persons, but might also be a breach of the principle of non-retrospectivity which lies behind Art 14(2) (n) of the Constitution.

Dep J:
41. I have read in draft the judgment of Keith J and I agree that the convictions should be set aside and a re-trial should be ordered.

Stock J:
42. I have had the advantage of reading in draft the judgment of Keith J, and I agree with it.

Orders:
(1) Application for leave to appeal against conviction granted.

(2) Appeal against conviction allowed and convictions quashed. Appellant to be retried unless the State decides to offer no evidence on the appellant’s retrial.

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Hon. Mr. Justice Brian Keith

Judge of the Supreme Court

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Hon. Mr. Justice Priyasath Dep

Judge of the Supreme Court

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Hon. Mr. Justice Frank Stock

Judge of the Supreme Court

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^[1] The Supreme Court’s power to increase an offender’s sentence is derived from section 14 of the Supreme Court Act 1998 and section 23(3) of the Court of Appeal Act 1949.