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Dass v State [2015] FJCA 108; AAU0059.2014 (13 March 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CRIMINAL APPEAL NO: AAU 0059 OF 2014
[High Court Case No: HAC 222/2011 Ltk]

BETWEEN:

KALI DASS
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. S. Sharma for the Appellant
Mr. V. Perera for the Respondent

Date of Hearing : 11 November 2014
Date of Ruling : 13 March 2015

RULING

[1] Following a trial in the High Court at Lautoka, the appellant was convicted on three counts of rape and sentenced to a total term of 13 years and 8 months imprisonment. This is a timely application for leave to appeal against convictions on the following grounds:

Ground 1 – The Learned Trial Judge erred in law and in fact when he failed to direct the assessors properly that the evidence of recent complaint is not evidence of the fact complained of and cannot be regarded as corroboration but goes to the consistency of the complainant's conduct with her evidence given as trial.

Ground 2 – The Learned Trial Judge erred in law and in fact when he convicted the Appellant for three counts of rape when there was no evidence towards one count of rape as per the victim's evidence.

Ground 3 – The Learned Trial Judge erred in law when he failed to remind the child victim about the importance of telling the truth before receiving her evidence resulting in unsafe conviction.

[2] Counsel for the State fairly concedes that the grounds are arguable.

[3] The complainant was the biological daughter of the appellant. The abuse started when she was 8 years old. Her mother had passed away. Subsequently she informed her aunt about the abuse. Complaint evidence was led at trial from the aunt. The appellant's contention that the trial judge's direction that the complaint evidence from the aunt corroborated the complainant's testimony was a misdirection. It is settled law that the complaint evidence does not amount to corroboration in sexual cases (Anand Abhay Raj v State unreported Cr. App. No. CAV0003 of 2014; 20 August 2014). Complaint evidence only shows consistency on the conduct of the complainant, which goes to her credibility.

[4] Without the court record, it cannot be ascertained whether the complainant gave sworn or unsworn evidence. If she gave unsworn evidence, then the trial judge was required to remind her importance of telling the truth (State v A.V unreported Cr. Case No. HAC192/08; 2 February 2008, followed in Rahul Ravinesh Kumar v State Cr. App. No. AAU0049/12; 4 March 2015)

[5] At trial, the complainant gave evidence of two episodes of rape. The factual basis for the conviction on three counts of rape is unclear.

Result
[6] The grounds of appeal are arguable.

[7] Leave granted to appeal against conviction.

.....................................
Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Director, Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for the Respondent