IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU 046 OF 2016
(High Court No. HAC 379 of 2013)

BETWEEN:

NIZAM ALI KHAN
								
Appellant

				

AND:

THE STATE

Respondent

Coram	:	Gamalath, JA
			Prematilaka, JA
			Bandara, JA

Counsel		:	Mr M. Fesaitu and Ms N. Sharma for the Appellant
			
Ms P. Madanavosa for the Respondent

Date of Hearing	:	4 February, 2022		

Date of Judgment	:	3 March, 2022

JUDGMENT
Gamalath, JA
[1]	Nizam Ali Khan, the appellant faced four counts in his trial in the High Court at Suva and the four counts were in respect of the sexual crimes committed against his biological two daughters, X and Y (names suppressed due to the tender age), during the period spanning 1st August 2013 to 3rd November 2013.

[2]	First Count; Sexual Assault and Second Count Rape contrary to Section 210(1)(a) of the Crimes Decree No.44 of 2009; and Section 207 (1) and (2)(c) and (3) of the Crimes Act No. 44 of 2009.  Accordingly, the appellant had between 1 August 2013 and 31 October 2013 at Waidamudamu Settlement, unlawfully and indecently assaulted X and forced her to indulge in oral sex.  The evidence of X shows that the appellant, used to call X into his bedroom and told her how he desired to suck her breast.  When the witness refused to go along with the appellant, the appellant would suck her breast forcibly.  This was a common occurrence whenever the mother, the wife of the appellant, was away from home.  Similar incidents had been lasting for about few months and on certain occasions the appellant licked X’s vagina, touched her buttocks.  In one particular occasion whilst indulging in having oral sex with her he ejaculated in her month.  On 7 November 2013, Y reported the ongoing molestations to the sister X and consequently the matter was reported to their mother, who in turn lodged a complaint at the police.

	The Third and the Fourth Counts   
[3]	Both are sexual assault counts contrary to Section 210(1)(a) of the Crimes Act No. 44 of 2009.	These counts are relating to the evidence of molestation of “Y” and according to Y’s evidence between 1 August 2013 and 6 November 2013, on several occasions in the night, whilst she was asleep, the appellant had approached her and while feeling her body had touched her breast and vagina. She was merely 15 years of age then.

The Appellant’s evidence
[4]	The appellant testified at the trial and denied the allegations and stated that he did not know why the two daughters testified against him.

The Ground of Appeal
[5]	At the beginning of the hearing the learned Counsel for the appellant reiterated that the appellant does not wish to pursue the ground against the sentence, and as such the application for the abandonment of the ground of appeal against the sentence was allowed.

[6]	The grounds of appeal pursued presently as follows;

Ground 1

	“The Appellant is adversely prejudiced by the learned trial Judge using the facts of the case as examples to define the indecent assault element in the charge of sexual assault therefore causing a substantial miscarriage of justice to the appellant.”
	The impugned directions of the learned trial Judge can be found in paragraphs 15 and 16 of the Summing Up which states that;

To describe the offence, we will start with the verb assault.  To assault someone means to apply unlawful force to the person of another, for example, to punch someone in the face, without any justification, is to apply unlawful force to the person of another.  Likewise, in the context of this case, to suck a female child’s breast, or to lick her vagina without any lawful justification is to apply unlawful force to the child’s person. (emphasis added).  
	
Paragraph 16

The assault must not only be unlawful, it must also be indecent.  An indecent assault is one committed in circumstances of indecency is what right minded people would consider indecent, for example, a 30 year old father sucking his under 13 years old daughters breast and licking her vagina for no adequate reasons.  It is therefore essential for the prosecution to make sure that the assault was not only unlawful, it was also indecent, that is, right minded people would consider the assault to be indecent.

The Law
[7]	The ground of appeal, based on the material highlighted above, may have been somewhat of a matter of concern, which may even have an impact directly on the final outcome of a trial, had the triers of facts been the jurors, as in many common law jurisdictions, where the final decision on the facts of a case is left exclusively in the domain of a panel of jurors, where guidance on the relevant principles of law would be decided by the trial Judge presiding over the case.

[8]	The importance in such instances to abstain from citing illustrations which carry close resemblance to the facts under the jurors scrutiny needs little elaboration, for if the trial Judge fails to observe the degree of circumspection that is required in such instances, it would certainly have an impact in the independent evaluation of the facts vis-à-vis the determination of the culpability of an accused person, whose fate is left in the hands of a panel of jurors.

[9]	In common law jurisdictions where the practice of hearing the criminal cases by the Judge with a jury, there has been a great amount of emphasis being paid to the need to be circumspective in relation to this aspect.
	
[10]	In an Australian case, R v. Ivanoviz [2005] VSCA 238, in matters relating to jury trials, the following observation is found about the subject under consideration;
	“Judge should usually avoid illustrating issues in the trial by way of factual examples which bear close resemblance to the disputed facts in the case.  Such examples might improperly be taken to invite a conclusion adverse to the accused”.

[11] 	The logic behind the dicta is quite clear, as the layman of the jury has a natural tendency to attach a certain, inevitable degree of sacrosanct to the pronouncements of a presiding judge of a trial.  In that context, there is this serious need to be vigilant  in citing illustrations for the purpose of making matters comprehensible, and any close kinship between the cited illustrations and the facts in dispute in a trial can be detrimental to the expected independent, unbiased  decision making process of the jurors.

[12]	We in Fiji did not follow the High Court trials on indictment in a manner that is akin to the system in operation in countries where the trials are by judge sitting with a jury.  Ours is an interactive, consultative process, wherein the judges seek guidance in arriving at a proper conclusion   from the assessors.  Ultimately the final say is the judge’s say.  He may concur with the opinion of the assessors or he is free to follow the course that he deems as appropriate within the parameters as dictated by the relevant laws.  (See: Ram Bali v,R, (1960) 7 F,L,R. 80 at  83, for the role of the Judge and the assessors).

[13]	The factual conclusions to which a jury would arrive at has a binding effect and save in rare occasions where the jurors are redirected on facts and law by a trial judge, in the context of a jury trial the final decision is the one that the jury pronounces.  However, in a case of a judge hearing a case with the assessors, the situation is different and inherent in it is the stark distinction from the jury system and as such the judge in the system such as in Fiji, there is no   enforceability of the opinion expressed by the assessors at the conclusion of the deliberations. As stated earlier judge is the final arbitrator both on law and facts.

[14]	Notwithstanding the clearly discernible distinction between the two systems, namely trial by jury where the jury is vested with the power to decide finally on matters of law and the system like in Fiji where the final determination on the facts is the trial judge, assisted by the assessors whose opinion has no binding power over the judge’s final decision, the Fiji Appellate courts have traditionally adopted the same criteria that has been prescribed for judges hearing cases with jurors. As to the scope within which the illustrations should be used in explaining the facts of case vis a vis the elements of the charge to be proved.   R v. Ivanovic ,(supra).

[15]	In the case of Ronal Chand v. The State [2017] FJCA 139; AAU 112.2013 (30 November 2017), the following has been stated:	
[27] 	This Court has on numerous occasions cautioned and even warned the trial judges against using examples in the summing up which could easily be related by the assessors to the facts before them. These kind of examples could have a lasting memory in the assessors in their deliberations at the end and should be avoided by the trial judges at all times. Given the facts of this case, I have no doubt that one of the examples given by the Trial Judge would have had an adverse impact highly prejudicial to the Appellant on the assessors.
 [16]	In a trial by a Judge being assisted by the assessors, what is cited as illustration by a Judge in essence is his perception on the facts. Since the Judge is not necessarily bound by the opinion of the assessors, whether the degree of caution that is required to be observed should be on a par with that of the degree of caution a Judge trying a case with a jury is not without uncertainties.  

[17]	Any alleged prejudice caused to an accused as a result of the cited illustrations has to be ascertained by having regard to the totality of evidence and attendant circumstances and in that sense if the illustrations have been used to expand the scope of the prosecution case beyond its factual parameters, that could most certainly be described as a cause providing a ground for intervention in an appeal.

[18]	In the case of Balekivuya v. State [2016] FJCA 16; AAU0081.2011 (26 February 2016) in paragraph [33] it states as follows:

“[33] 	It must be stated at the outset that the directions on the elements of murder were correct. Furthermore there is no error in using examples to explain the elements of the offence to the assessors. Certainly kicking and punching are forms of assault and are unlawful acts. However the use of hitting a person on the head with a spade is the same as the conduct that formed part of the case for the prosecution. As a result it may have been perceived as bolstering the case for the prosecution. However the prosecution's case did not need bolstering since there were no apparent deficiencies in the prosecution case. At no stage was it disputed by the Appellants that they were present in Shalimar Street at the time of the incidents. The Appellants disputed the events that were alleged to have occurred. Although the practice of using examples that too closely resemble the facts upon which the prosecution relies is not appropriate, in this case there was nothing added to the prosecution case. There was direct evidence from two witnesses who had survived the assaults as to how Krishneel had met his death. In my judgment the Appellants were not prejudiced by the use of the similar examples in this case. The learned Judge as the ultimate trier of fact and law had no hesitation in indicating his agreement with the opinions of the assessors after reviewing the evidence. There was no miscarriage of justice and this ground does not succeed.”(emphasis is mine)

[19]	Having regard to the above dicta, the test to be used, as I see it, in a case where the Judge is assisted by the assessors, is whether the cited illustration have added anything more to the prosecution case meaning,  whether the illustration is capable of embellishing or expanding the case for the prosecution.

[20]	In the case of Balekivuya et al, the appellants were convicted inter alia for murder and the learned trial Judge seemed to have used the very mode of causing injuries as illustrations to explain the element of murder to the jurors.  The Court of Appeal held that; 
	“[33].	It must be stated at the outset that the directions on the elements of murder were correct. Furthermore there is no error in using examples to explain the elements of the offence to the assessors. Certainly kicking and punching are forms of assault and are unlawful acts.”
	
[21]	The onus lies in the appellant to establish that the illustrations are prejudicial and as such the conviction is bad in law.  Relying on the dicta as contained in Balekivuya et al, supra, the appellate court in determining the facts relating to cases similar to  the  instant case would examine if the illustrations that were left with the assessors had caused,
	(a)	a bolstering of the prosecution case;
	(b)	a resultant irreversible prejudicial impact, that is detrimental to the appellant.

[22]	In the instant appeal, the learned trial judge had used the following illustration to explain the ingredients “assault”, “unlawful” and “indecent”, in particular, page 47 paragraphs 15 and 16.

“[15]	To describe the offence, we will start with the verb “assault”.  To “assault” someone means to apply unlawful force to the person of another, for example, to punch someone in the face, without any justification, is to apply unlawful force to the person of another.  Likewise, in the context of this case, to such a female child’s breasts, or to lick her vagina, without any lawful justification, is to apply unlawful force to the child’s person. A child also, as a matter of law, cannot consent to an adult sucking her breast, or licking her vagina.  This law was put there to protect children.

[16]	The ‘assault’ must not only be ‘unlawful’, it must also be ‘indecent’.  An indecent assault is one committed in circumstances of indecency.  A circumstance of indecency is what right-minded people would consider indecent, for example, a 30 year old father sucking his under 13 years old daughter’s breasts, or licking her vagina, for no adequate reasons.  It is therefore essential for the prosecution to make you sure that the assault was not only unlawful, it was also indecent, that is, right-minded people would consider the assault to be indecent.”

[23]	I do not see anything in the illustrations that could be construed as capable of bolstering the prosecution’s case, nor do I find any submission on behalf of the appellant’s to the effect that the illustrations used had caused any miscarriage of justice.  The learned trial Judge had used the evidence of the incident to describe certain ingredients of the charges and, this indeed is a situation where he was thinking loud. 

[24]	In the light of aforesaid, the ground of appeal cannot succeed.

	The Second Ground of Appeal

[25]	The Second Ground of Appeal is that “the Appellant was prejudiced upon the learned trial Judge informing the assessors in his summing up that a prima facie case was found at the end of the prosecution case.”

[26]	The impugned paragraph [24] of the Summing Up is that “On 30 March 2016, the first day of the trial proper, the information was put to the accused in the presence of his Counsel.  He pleaded not guilty to all the counts.  In other words, he denied all the allegations against him.  When a prima facie case was found against him at the end of the prosecution’s case, wherein he was called upon to make his defence, he choose to give sworn evidence and called no witnesses.”

[27]   	It is no secret  that at the end of a trial if the court considers there is evidence that the accused committed the offence, the court will inform his rights as prescribed in law; Section 293 (2) of the Criminal Procedure Code reads as follows;
	
“293.-(2) When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been in evidence, the court, if it considers that there is evidence that the accused person or anyone or more of several accused persons, committed the offence, shall inform each such accused person of his right to address the court, either personally or by his legal practitioner (if any), to give evidence on his own behalf, or to make an unsworn statement, or to adduce evidence, then the legal practitioner for the prosecution may sum up the case against such accused person … … If such accused person says that he means to give evidence or make an unsworn statement, or to adduce evidence, the court shall call upon such accused person to enter upon his defence.” 

[28] 	I do not find any intervention by the counsel for the accused seeking a redirection on this 
 	clearly discernible issue, at the end of the summing up by the learned trial judge.

[29] 	In the circumstances I am unable to agree with the submission on behalf of the appellant that the second ground of appeal has merits to be considered. In the circumstances this ground of appeal cannot succeed.

[30] 	Due to the reasons given above the appeal is dismissed and conviction affirmed.

Prematilaka, JA

[31]	I have read in draft the judgment of Gamalath, JA and agree with reasons and the proposed order of dismissing the appeal.  I may also add that the decision on Chand v. The State (supra) should be understood in the context where the only evidence against the appellant was a dying declaration and the main issue was whether the deceased was set on fire by the appellant or she herself did it to her.  

Bandara, JA

[32]	I have read the draft judgment of Gamalath JA and agree with his reasoning and conclusions. 

Orders of the Court
1.	Appeal dismissed.
2.	Conviction affirmed.

Hon. Justice S. Gamalath
JUSTICE OF APPEAL

Hon. Justice C. Prematilaka
JUSTICE OF APPEAL

Hon. Justice W. Bandara
JUSTICE OF APPEAL