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Chand v State [2015] FJCA 165; AAU158.2014 (1 December 2015)

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

CRIMINAL APPEAL NO. AAU158 of 2014
[High Court Case No. HAC 43/13 Labasa]

BETWEEN :

RAHUL RITESH CHAND
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Ms S. Colavanua for the Appellant
Mr. S. Vodokisolomone for the Respondent

Date of Hearing : 28 October 2015
Date of Ruling : 1 December 2015

RULING

[1] The appellant was charged with one count of rape contrary to section 207(1)(2)(a) of the Crimes Decree of 2009. Following a trial, he was convicted and sentenced to 8 years imprisonment with a non-parole period of 6 years by the High Court at Labasa.

[2] This is a timely application for leave to appeal against conviction pursuant to section 21(1) of the Court of Appeal Act, Cap 12. At paragraph 5 of the Notice of Appeal, the appellant states that he appeals against both the conviction and sentence on grounds set out at paragraphs 6-17:

"6. THAT the Learned Judge erred in law and in fact in failing to accept the unanimous opinion of the assessors and erred in law and in fact in failing to give reasons for disagreeing with the assessors.

7. THAT the Learned Judge erred in law when disagreeing with the majority opinion of the assessors, failed to give cogent and sufficient detailed reasons in light of the whole evidence and the basis upon which he reached the conclusion in particular the inferences drawn from the evidence.

8. THAT the Learned Judge erred in law and in fact in failing to clearly state cogent reasons for departing from the opinion of the assessors.

9. THAT the Learned Judge erred in law and in fact in failing to allow the counsel for the appellant to cross-examine the complainant on the circumstances surrounding the commission of the purported offence that was integral to the defence of the appellant.

10. THAT the Learned Judge erred in law and in fact in failing to properly direct himself on unchallenged evidence of the appellant and his witnesses and erred in holding that the complainant had made a complaint one day after the alleged incident when in fact there was unchallenged evidence that the complainant had stayed with the accused for another night without complaint.

11. THAT the Learned Trial Judge erred in law and in fact in not dealing adequately and/or properly and/or sufficiently on defence evidence and the exhibits and in no identifying what evidence could corroborate the defence.

12. THAT the Learned Trial Judge erred in law and in fact in misdirecting and/or not properly and/or sufficiently himself on recent complaint, medical certificate and complainants undergarments tendered as exhibit.

13. THAT the Learned Judge erred in law in failing to redirect himself in accordance with the submissions for redirection made by the counsel for the appellant after the completion of summing up.

14. THAT the Learned Judge erred in law and in fact in failing to analyse the evidence and direct himself in accordance with the summing up and in accordance with redirection sought after completion of summing up.

15 THAT the Learned Judge erred in law and in fact in failing to direct himself in accordance to the evidence adduced in particular the time when the alleged offence was committed.

16. THAT the Learned Judge erred in law and in fact in failing to take into consideration the unchallenged and uncontested evidence of defence witness in particular the testimony of Ashwini Lata.

17. THAT the learned Judge erred in law in failing to comply with Section 141, Section 142 and Section 237 of the Criminal Procedure Decree."

[3] As can be seen, none of the grounds relate to sentence.

[4] Apart from leave, the appellant also seeks bail pending appeal pursuant to section 17(3) of the Bail Act 2002.

[5] I first deal with the question of leave. The test for leave is whether any of the ground of appeal is arguable. Twelve grounds have been advanced. Some grounds overlap. In that regard, the appellant's re-numbering of his grounds in his written submissions is confusing. However, the gist of the appeal is that the trial judge erred in law by not giving cogent reasons for not agreeing with the assessors' opinion and the guilty verdict is unreasonable or cannot be supported having regard to the evidence.

[6] At trial, the appellant did not dispute sexual intercourse. The only issue was consent or lack of it. The complainant was an adult woman. Her evidence was that she did not consent to the sexual intercourse. The appellant's evidence was that she consented to the sexual intercourse. The assessors expressed unanimous opinion that the appellant was not guilty. The trial judge did not accept the assessors' opinions. In a brief judgment, the trial judge said he believed the evidence of the complainant on the issue of lack of consent and found the appellant guilty. The trial judge gave no reasons for rejecting the appellant's evidence. In my judgment, the appeal is arguable and therefore I grant leave on all grounds.

[7] The principles regarding bail pending appeal are settled. The presumption in favour of grant of bail had been displaced following the appellant's conviction. His term of imprisonment is long. The appeal can be heard next year. I am satisfied that the appellant is not going to end up serving substantial term of his imprisonment before his appeal is heard. The grounds of appeal are arguable, but they do not demonstrate every chance of success, which is the test for bail pending appeal. Also the appellant has not demonstrated any exceptional circumstance to justify releasing him on bail. For these reasons, bail must be refused.

Result

[8] Leave to appeal conviction granted.

[9] Bail pending appeal refused.

....................................
Hon. Justice Daniel Goundar
JUSTICE OF APPEAL

Solicitors:
Messrs. Maqbool & Co. for the Appellant
Office of the Director of Public Prosecutions for State