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Reddy v State [2015] FJCA 48; AAU6.2014 (13 March 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL: AAU 6 OF 2014
(High Court HAC 96 of 2011)

BETWEEN:

PRANEET ANAND REDDY
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini P
Counsel : Mr S Sharma for the Appellant
Mr L Fotofili for the Respondent

Date of Hearing : 30 December 2014
Date of Ruling : 13 March 2015

RULING

[1] The Appellant was charged with one count of rape contrary to section 207 (1) and (2) (a) of the Crimes Decree 2009 and one count of defilement contrary to section 215 (1) of the same Decree. Following a trial in the High Court at Suva the assessors returned a unanimous opinion of not guilty on the rape charge but guilty on the alternative charge of defilement. The learned trial Judge agreed with the opinions of the assessors and entered verdicts of guilty on the defilement charge and not guilty on the charge of rape. The Appellant was formally convicted of defilement on 30 January 2014. On 4 February 2014 the Appellant was sentenced to a term of imprisonment of two (2) years with a non-parole term of 18 months.

[2] The Appellant filed a timely appeal against conviction and at the same time also filed an application for bail pending appeal. By motion filed on 17 April 2014 the Appellant sought leave to file and serve an amended application for leave to appeal against conviction and renewed his application for bail pending appeal. The Appellant subsequently filed an amended application for leave to appeal against conviction on 26 June 2014. He relied on the following grounds of appeal:

"1. The Learned Trial Judge erred in law and in fact when he misdirected and/or failed to provide any assistance to the assessors about the defence of defilement.

2. The Learned Trial Judge erred in law when he shifted the burden of proof onto the Appellant in respect of the defence of defilement.

3. The Learned Trial Judge erred in law and in fact when he failed to direct the assessors about the onus of proof and the burden of proof in respect of the defence of defilement causing a substantial miscarriage of justice.

4. The Learned Trial Judge erred in law and in fact when he invited the assessors to decided the guilt or otherwise of the Appellant solely on the prosecution evidence.

5. The Learned Trial Judge erred in law and in fact when he did not direct the assessors properly in respect of the lie by the Complainant about her actual age which was crucial to the defence.

6. The Learned Trial Judge erred in law by failing to make an independent assessment of the evidence before affirming a verdict which was unsafe, unsatisfactory and unsupported by evidence giving rise to a substantial miscarriage of justice."

[3] To the extent that the grounds of appeal raise questions of mixed fact and law, the Appellant requires the leave of the Court under section 21(1) (b) of the Court of Appeal Act Cap 12 (the Act). Pursuant to section 35 (1) of the Act, a justice of appeal may exercise the power of the Court to grant leave to appeal and to grant bail pending appeal.

[4] The background facts to the charges appear in the sentencing judgment and are repeated here:

"The defendant was posted as a teacher at the island of Gau in February 2011. It was his first posting. He was the assistant form teacher in Form 5 where the victim "ML" was a student. The defendant was 22 years old at the time and ML was 15 years. He taught her Maths and Physics. He resided in the teachers quarters which were less than 200m away from the girls' dormitory together with another male teacher. On 13th March 2011 which was a Sunday at around 7pm, ML together with another student went to the defendant's quarters to get some noodles even though this was not allowed as the students were supposed to be in their dormitories at that time. Despite this, the defendant allowed the students into his quarters and took ML inside his room while the other student waited outside the room with the other male teacher. The defendant and the victim spent 5 to 10 minutes inside the room where they had sexual intercourse, with the defendant using a condom. Thereafter the victim and her friend returned to the dormitory where the victim relayed the incident to her friend. There were also "love-bite" marks on her neck which raised suspicion with the authorities at school. The victim was interviewed by the Vice Principal, counselled and then suspended. The defendant was too suspended. The matter was reported to the Police at Qarani, Gau."

[5] The test for granting leave to appeal is whether the appeal raised an arguable ground. At the hearing Counsel for the Appellant indicated that the Appellant was not proceeding on ground 5 which was as a result abandoned. The question then is whether any of the remaining five grounds are arguable in the sense that they are worthy of consideration by the Court.

[6] Ground one is concerned with the directions given by the learned Judge to the assessors concerning the defence to the charge of defilement that is contained in section 215 (2) of the Crimes Decree. The Appellant takes issue with two specific comments in paragraph 10 of the summing up. The first is the use of the words "good cause to believe" in the summing up when section 215 (2) states that what is required to be shown is "reasonable cause to believe". The second issue is that in the same paragraph the learned Judge stated that the Appellant must show that "in all probability" he thought the complainant was at least 16 years old. It is submitted that the words "in all probability" suggests a higher standard of proof rests on the Appellant to establish the defence than "on the balance of probabilities" (Sami –v- The State AAU 46 of 2002; 26 November 2004). Whether this ground constituted a misdirection and if so its consequences are arguable and leave is granted. This ground must however be seen in the context of the defence that was raised at the trial and to which reference is made at paragraph 20 of the summing up that there was no act of sexual intercourse between the complainant and the Appellant.

[7] Grounds 2 and 3 raise issues concerning the onus and standard of proof with particular reference to the defence to defilement in section 215 (2) of the Crimes Decree. It is not necessary for a trial judge to attempt to explain to lay assessors the technical legal difference between the legal onus of proof and the evidentiary onus. It would be sufficient to indicate that where there are circumstances giving rise to the defence under section 215 (2) of the Decree, it is for the accused to establish on the balance of probabilities that he had reasonable cause to believe and that he did in fact believe that the complainant was 16 years old or over 16 years: Sami –v- The State (supra). This issue is dealt with in paragraph 26 of the summing up and in my judgment has sufficiently raised the defence for consideration by the assessors. I consider that the trial judge has correctly indicated both the standard and onus of proof in relation to the defence and in my view neither ground is arguable.

[8] Ground 4 relates to the direction give by the learned trial Judge to the assessors that they should "decide the guilt or otherwise of the accused solely on the prosecution evidence." It can be inferred that such a direction suggests to the assessors that they should disregard any evidence that tendered to establish the defence under section 215 (2). The ground is arguable.

[9] Ground 6 is concerned with the Judgment of the learned trial Judge. It is submitted that the learned trial Judge failed to undertake an independent assessment of the evidence related to the defence to defilement. Pursuant to section 237 of the Criminal Procedure Decree 2009 where the trial judge agrees with the opinion of the assessors and where the summing up is on record the only requirement is for the judge to give the decision of the court which must be written down. Under those circumstances the judge's summing up and the decision of the court are collectively deemed to be the judgment of the court for all purposes. It is not for an appellate court to impose mandatory obligations on a trial judge that are more onerous than those prescribed by the Decree. In the recent decision of Sheik Mohammed –v- The State (unreported CBV 2 of 2013; 27 February 2014) the Supreme Court reviewed the authorities on this point under both the Criminal Procedure Code and the Criminal Procedure Decree. In its conclusion the Supreme Court took the matter no further other than to state at paragraph 32 that:

"An appellate court will be greatly assisted if a written judgment setting out the evidence upon which the judge relies when he agrees with the opinions of the assessors is delivered. This should become the practice in all trials in the High Court."

[10] Although the judgment of the learned trial Judge delivered on 30 January 2014 does not comply with the Supreme Court's incantation, such failure does not in any way invalidate the proceedings. The learned trial Judge has complied with the requirements of section 237 of the Criminal Procedure Decree. The ground is not arguable.

[11] Turning now to the application for bail pending appeal. There was no affidavit filed in support of the motion for bail pending appeal. The application is made pursuant to section 33 (2) of the Court of Appeal Act and comes before me pursuant to the jurisdiction given to a justice of appeal under section 35 (1) of the Act.

[12] Whether bail pending appeal should be granted is a matter for the exercise of the
Court's discretion. The words used in section 33 (2) are clear. The Court may, if it sees fit, admit an appellant to bail pending appeal. The discretion is to be exercised in accordance with established guidelines. Those guidelines are to be found in the earlier decisions of this court. In addition, the discretion is subject to the provisions of the Bail Act 2002. The discretion must be exercised in a manner that is not inconsistent with the Bail Act.

[13] The starting point in considering an application for bail pending appeal is to recall the distinction between a person who has not been convicted and enjoys the presumption of innocence and a person who has been convicted and sentenced to a term of imprisonment. In the former case, under section 3(3) of the Bail Act there is a rebuttable presumption in favour of granting bail. In the latter case, under section 3(4) of the Bail Act, the presumption in favour of granting bail is displaced.

[14] Once it has been accepted that under the Bail Act there is no presumption in favour of bail for a convicted person appealing against conviction and/or sentence, it is necessary to consider the factors that are relevant to the exercise of the discretion. In the first instance these are set out in section 17 (3) of the Bail Act which states:

"When a court is considering the granting of bail to a person who has appealed against conviction or sentence the court must take into account:

(a) the likelihood of success in the appeal;

(b) the likely time before the appeal hearing;

(c) the proportion of the original sentence which will have

been served by the appellant when the appeal is heard."

[15] Although section 17 (3) imposes an obligation on the Court to take into account the three matters listed, the section does not preclude a court from taking into account any other matter which it considers to be relevant to the application. It has been well established by cases decided in Fiji that bail pending appeal should only be granted where there are exceptional circumstances. In Apisai Vuniyayawa Tora and Others –v- R (1978) 24 FLR 28, the Court of Appeal emphasised the overriding importance of the exceptional circumstances requirement:

"It has been a rule of practice for many years that where an accused person has been tried and convicted of an offence and sentenced to a term of imprisonment, only in exceptional circumstances will he be released on bail during the pending of an appeal."

[16] The requirement that an applicant establish exceptional circumstances is significant in two ways. First, exceptional circumstances may be viewed as a matter to be considered in addition to the three factors listed in section 17 (3) of the Bail Act. Thus, even if an applicant does not bring his application within section 17 (3), there may be exceptional circumstances which may be sufficient to justify a grant of bail pending appeal. Secondly, exceptional circumstances should be viewed as a factor for the court to consider when determining the chances of success.

[17] This second aspect of exceptional circumstances was discussed by Ward P in Ratu Jope Seniloli and Others –v- The State (unreported criminal appeal No. 41 of 2004 delivered on 23 August 2004) at page 4:

"The likelihood of success has always been a factor the court has considered in applications for bail pending appeal and section 17 (3) now enacts that requirement. However it gives no indication that there has been any change in the manner in which the court determines the question and the courts in Fiji have long required a very high likelihood of success. It is not sufficient that the appeal raises arguable points and it is not for the single judge on an application for bail pending appeal to delve into the actual merits of the appeal. That as was pointed out in Koya's case (Koya v The State unreported AAU 11 of 1996 by Tikaram P) is the function of the Full Court after hearing full argument and with the advantage of having the trial record before it."

[18] It follows that the long standing requirement that bail pending appeal will only be granted in exceptional circumstances is the reason why "the chances of the appeal succeeding" factor in section 17 (3) has been interpreted by this Court to mean a very high likelihood of success.

[19] In my judgment the grounds of appeal for which leave has been granted are no more than arguable. They certainly do not meet the test of a very high likelihood of success. Although the sentence imposed was relatively short, the failure to meet the threshold means that neither the requirements of section 17 (3) of the Bail Act nor the exceptional circumstances requirement have been satisfied and the application must be refused.

Orders:

(1) Appellant is granted leave to appeal against conviction on grounds 1 and 4.

(2) Application for bail pending appeal is refused.

____________________________________
Hon. Mr Justice W. D. Calanchini
President, Court of Appeal