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Singh v State [2024] FJCA 16; AAU51.2022 (31 January 2024)

IN THE COURT OF APPEAL, FIJI
On Appeal from the High Court

CRIMINAL APPEAL NO. AAU 51 OF 2022

High Court HAC 170 of 2020

BETWEEN

PRANIL ALVIN SINGH
Appellant

AND:

THE STATE

Respondent

Coram : Mataitoga, RJA

Counsel : Mr. Herritage S for the Appellant

Ms. Fatiaki J for the Respondent

Date of Hearing : 16 January, 2024

Date of Ruling : 31 January 2024

RULING

[1] The Appellant was charged and tried in the High Court at Suva as follows:

COUNT 1

Statement of Offence

ARSON: contrary to section 362 (a) of the Crimes Act 2009.

Particulars of Offence

PRANIL ALVIN SINGH on the 5^th day of June, 2020, at Nadawa, Nasinu in the Central Division, wilfully and unlawfully set fire to his dwelling house.

COUNT 2

Statement of Offence

ATTEMPTED MURDER: contrary to sections 44 and 237 of the Crimes Act 2009.

Particulars of Offence

PRANIL ALVIN SINGH on the 5^th day of June, 2020, at Nadawa, Nasinu in the Central Division, attempted to murder AARAV KRISH SINGH.

COUNT 3

Statement of Offence

ATTEMPTED MURDER: contrary to sections 44 and 237 of the Crimes Act 2009.

Particulars of Offence

PRANIL ALVIN SINGH on the 5^th day of June, 2020, at Nadawa, Nasinu in the Central Division, attempted to murder KRISHAV AAYAN SINGH.

[2] The appellant was convicted of all the charges brought against him in the judgment delivered on 1 June 2022. He was sentence on 16 June 2022 to life imprisonment with a minimum term of 14 years to serve before any release is considered.

[3] The appellant, through counsel filed a timely appeal in the Court of Appeal Registry on 14 July 2022.

Summary of Facts

[4] The following summary of facts are from the sentence ruling of the trial judge in this case in the High Court.

[5] The appellant was married with two sons. About three months before the incident he had been living separately in a rental low cost housing owned by his relative in Nadawa after his spouse went to live with her mother with their two children. During the separation, the offender was in contact with his spouse and he convinced her to get back together for the sake of their children. She agreed and moved to live with him in Nadawa with their two sons.

[6] The incident occurred three days after the offender and his spouse got back together. On Friday, 5 June 2020, the offender’s spouse left home for work in the morning, leaving the children with him. Without prior notice, the offender appeared at his spouse’s workplace in the afternoon, asking her to lend him $100.00. When he did not get the money from her he went to a relative and got $50.00 from him. He returned home in a taxi with his two sons. After arriving home his eldest son overheard him having a conversation with a stranger inside their house. After the stranger left, the appellant spoke to his mother in the USA. He ended his conversation with his mother abruptly by throwing his phone on the floor. The discussion with the mother was about money.

[7] After that the appellant engaged in a peculiar but calculated conduct. He forced his eldest son who was about 10 years old at the time to damage the television with a hammer. He then took the hammer from his son and nailed the front and the back entrance doors. He opened a gas cylinder that was not connected to the gas stove and then he opened the gas cylinder that was connected to the stove. He ignited the stove, causing an explosion. He went and held his two sons tightly while the fire spread inside the house. His younger son was about 1 ½ years old at the time.

[8] When the offender’s eldest son realized that he was being held back from escaping he bit the offender’s hand and got off his grip. The eldest son ran to the window and screamed for help. The neighbours came for their rescue. When the neighbours could not open the doors, they broke the window and rescued the eldest son. When the boy alerted the neighbours that his younger brother was inside the house, the neighbours then forcefully broke the front entrance door and rescued the offender and his younger son. The appellant and the victims did not sustain any significant burns or injuries, but they were taken to a hospital for a medical check and were discharged on the same day.

[9] At the end of the trial the appellant was found guilty of all charges brought against him, convicted and the court imposed an aggregate sentence of life imprisonment with a minimum term of 14 years before any release may be considered.

[10] The appellant submitted a Notice of Motion with submissions of the grounds of appeal, seeking Leave to Appeal against his conviction and sentence within the time permitted to appeal.

The Leave Application

[11] The appeal alleges errors of law and fact by the trial judge and is filed his application for leave pursuant to section 21(1)(b) of the Court of Appeal Act. This provision requires leave of the court, hence this application for Leave to Appeal by the appellant. The appellant submits five (5) grounds of appeal against conviction and three (3) against sentence.

[12] For leave to be granted, the appellant must convince the court that all or any of the grounds submitted in support of the leave application have a reasonable prospect of success: Caucau v The State [2018] FJCA 171. The Court in Sadrugu v State [2019] FJCA 87, adopted the approach enunciated in S v Smith [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) (para 7) wherein Supreme Court of Appeal of South Africa, addressing whether leave to appeal by the high court should have been granted or not, stated the following:

‘What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal. (emphasis added)

[13] Therefore, I use the test of reasonable prospect of success as described in Smith, (supra) to evaluate the grounds submitted by the appellant in support of his Leave Application.

Grounds Against Conviction

[14] The first ground of appeal allege is that the trial judge erred in law and fact in not taking into consideration evidence against each counts separately. This claim is novel in its misconception. In Fiji, Section142 Criminal Procedure Act 2009 set out the statutory guidelines for every judgement including the one appeal against. This provision does not require the trial judge to follow the approach urged by the appellant. The approach of the trial judge is not contrary to law nor is there any reference in the appellant’s submission specifying the legal principles that he claims was not followed, thus justifying the claim of error of law. This ground has no merit and unlikely to succeed.

[15] I next deal with grounds 2 and 4 – they cover similar objections and claim regarding inconsistent statements of various witnesses at the trial. The law on inconsistent statements by witnesses in a trial is clearly stated in two Supreme Court decisions in Swadesh Kumar Singh v The State [2006] FJSC 15 and Praveen Ram v The State [2012] FJSC 2. What may be summarised as the legal principle from these cases is that omissions or inconsistencies statements both go to credibility of the witnesses. But the weight to be attached to the inconsistency or omission depends on the circumstances of each case. There are no hard and fast rule - the guideline is that discrepancies which do not go to the root of the matter or shake the basic version of the witnesses evidence cannot be given undue importance, when consideration is given to the important ‘probabilities factor’ supports the version of evidence narrated by the witness: Bharwada Bhoginbhai Hirijbhai v State [1983] AIR 753, 1983 SCR (3) 280.

[16] In reviewing the passages from the trial judge’s Judgement quoted in the appellant’s submission to support the claim they make for these grounds it is evident that it is being picked out of context and circumstances of the case as a whole. The trial Judge at paragraphs 38 of the judgment stated:

‘[38] The accused’s account contradicts his son, Aarav’s account. The prosecution case is substantially dependent on the truth of Aarav’s evidence. If Aarav’s account is true then the accused [appellant] is guilty of the charges.

And at paragraph [39] to [42] the trial judge sets out the evidence of PW2 Aarav which form the basis of his findings that he does not believe the evidence of the accused [Para 42].

[17] Furthermore at paragraph [44] of the judgment, the trial Judge stated although Aarav is a child, he gave sensible answers and logical account of the incident. The inconsistencies highlighted in Aarav’s account by the defence are not material but peripheral. There is no merit to these grounds

[18] Grounds 3 and 5 covers similar issues namely, that the trial judge erred in being satisfied that the evidence adduced by the prosecution was sufficient to establish the elements of the offence charged against the appellant. For ground 3 the supporting submission is a reference to the statement of law in Summers [1952] 1 ALL ER 1059 which states that no one should be convicted unless by the evidence adduce at his trial the offence charged. In this case, the agreed facts covered some of the elements of the offence and the others were adduced during the trial. From paragraph 43 to 48 of the judgement, the trial judge set out the basis of his accepting that the element of the offence have been proven based on the evidence of witnesses:

‘[43] I do not believe the accused’s account that he rushed to protect his children and lost consciousness after the gas explosion. He was only a few steps away from the front entrance door, yet, he made no effort to escape after the explosion. He was found on a mattress in the sitting room holding his younger son when the neighbours dragged him out of the burning house.

`` [44] Although Aarav is a child, he gave a sensible and logical account of the incident. The inconsistencies highlighted in Aarav’s account by the defence are not material but are peripheral. Aarav’s account proves that the accused deliberately set the house on fire and then held his children back from escaping. The intention to kill can be inferred from the conduct of securing the doors with nails to prevent an escape or intervention from outside, before setting the house on fire. If the neighbours had not intervened on time by forcefully breaking the window and the front door, the accused and his two children would have died in the fire.

[45] The accused had both opportunity and motive. At the time of the incident, his marriage was fragile. He was living in a low cost rental housing and his fruit selling business was not running well. On the day of the incident he was desperate for cash. The only logical inference from the evidence is that the accused intended to kill himself and his two children by setting his house on fire. There was no legal excuse for the accused to set fire to his house.

[46] The prosecution has discharged its burden by proving all three charges beyond reasonable doubt.

[47] I feel sure that the accused on 5 June 2020, wilfully and unlawfully set fire to his dwelling house.

[19] Ground of appeal has no merit and is dismissed.

[20] Ground 5 the claim an error on the part of the trial judge relates to the standard of proof beyond reasonable doubt. The appellant written submission does not give any reference to the doubts they claim to exists. During the hearing of the appeal, counsel for the appellant, raised the report of the National Fire Authority Expert on the cause and site of the fire as creating doubt, even that submission was not well articulated. The report stated that cause of the fire was incendiary in nature, that it was deliberately lit and the ignition source was the gas stove.

[21] The analysis of the evidence set out in the judgement from paragraph 35 to 48 is clear, concise and satisfies the standard of proof that the House of Lords in Summers [supra] speaks to. In addition most of the ingredients of the offence were part of the Agreed Facts and the court may accept those as proven beyond reasonable doubt. This was highlighted in the respondent submission. These grounds have no merit.

[22] Ground 6 against conviction is the appellant’s claim that the trial judge inadequately considered the defence case, in so doing erred in law. The judgement at paragraphs 29 to 33, the trial judge set out the case of the defence based on the evidence in court. The appellant’s submission does not specify how, in their view, the trial judge have inadequately considered the case of the defence. When you take into consideration the Admitted Facts in this case, most of the elements of the offences charged against the appellant is admitted. The rest is the evidence of the main witnesses, namely, [PW2] Aarav and the appellant. In my review I find that the trial judge approach has adequately covered the basis why he preferred the evidence of PW1 against that of his father, the appellant. There is no error of law there. This ground has no merit.

[23] The grounds submitted by the appellant to challenge his conviction in this leave application have no reasonable prospect of success. They are dismissed.

Grounds Against Sentence

[24] The appellant submitted three (3) grounds of appeal against sentence. These may be summarised as follow:

(i) That the 14 years for the 3 charges the appellant was convicted in the High Court is harsh and unjust due to its severity

(ii) That the trial Judge erred in imposing a minimum term of 14 years because he misdirected himself on the requirements of section 237 Crimes Act

(iii) Trial judge erred in his interpretation of section 44(1) Crimes Act when considering when equating the sentence of arson with attempted murder

[25] At this stage of the appeal process in the Court of Appeal, when the sentence is challenged the court is guided by the following principles enunciated in Kim Nam Bae v State [1999] FJCA 21. The Court stated the following principle of law to guide the assessment of the grounds of appeal submitted.

“The question we have to determine is whether we "think that a different sentence should be passed" (s 23 (3) of the Court of Appeal Act (Cap 12)? It is well established law that before this Court can disturb the sentence, the appellant must demonstrate that the Court below fell into error in exercising its sentencing discretion. If the trial judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some relevant consideration, then the Appellate Court may impose a different sentence. This error may be apparent from the reasons for sentence or it may be inferred from the length of the sentence itself (House v The King (1936) 55 CLR 499).’’

[26] In the appellants submission on the applicable legal principles from page 18-20, five (5) cases are referred to, without any specific discussion on how these cases are relevant to the case of the appellant in this instance. Kim Nam Bae (supra) is not mentioned, nor is there reference to issues such as: how the trial judge acted on wrong principle of sentencing or took irrelevant or extraneous matters or he mistook facts, in exercising his discretion to impose the sentence he did.

[27] Grounds 2 and 3 summarised in paragraph 22 above and the supporting the appellant’s submission, misrepresent the action of the trial judge in sentencing the appellant. This is clear when you consider what the trial judge stated during sentencing of the appellant: refer to paragraph 9 to 13. The 14 years of for non-parole may appear harsh and excessive, if there was only 1 count of attempted murder and 1 count of arson. But in this case there was 2 separate counts of attempted murder against 2 of the appellant’s children and 1 count of arson. All of these offences charged carry life imprisonment as the maximum sentence.

[28] Was the sentence imposed in the high court harsh and excessive? I do not think so. In his case there were three offences which is part of the same transaction. The appellant’s culpability in respect of each offence is the same. Each of the offences charge against the appellant carry a maximum penalty of life imprisonment. I agree with the trial judge, that in those circumstances, an aggregate sentence is justified to reflect the appellant’s total culpability. These grounds have no merit.

[29] In conclusion the application for Leave to Appeal against conviction and sentence have no reasonable prospect of success and are dismissed.

ORDERS:

Leave to appeal against conviction and sentence is refused.

Isikeli U Mataitoga
Resident Justice of Appeal