IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 118 OF 1989

Between:

RAM CHANDAR SHARMA
s/o Uma Shankar
Appellant

v.

STATE
Respondent

Appellant in Person
Mr. R. Perera for the Respondent

JUDGMENT

The appellant was tried and convicted by the Nausori Magistrate court for an offence of indecently assaulting a young Fijian girl. Upon his conviction the appellant was sentenced to 19 months imprisonment.

He now appeals against both the conviction and sentence on the following main grounds:

"(a)	That the trial Magistrate erred in law in failing to give the appellant right of election as the case is an electable one;

(b)	That the learned trial Magistrate erred in law in denying the appellant to be defended by counsel, when requested for an adjournment to find a counsel for his defence;

(c)	That the facts and evidence produced by the prosecution was insufficient to prove the alleged offence of indecent assault;

(d)	That the learned trial Magistrate erred in law and facts resulting in a mis-carriage of justice, for the trial was conducted unfairly by his undue interruption rendering it impossible for the defendant to present his defence fairly; and 

(e)	Considering the facts and circumstances of the case the said sentence of 19 months imprisonment is too harsh and excessive."

I can quickly dispose of grounds (a), (b) and (d). In the first place since the Electable Offences Decree No. 22 of 1988 offences of Indecently Assaulting a Female contrary to Section 154(1) of the Penal Code, Cap. 17 ceased to be electable.

In the second place, a perusal of the court record reveals that the appellant was first charged in November 1988 and was only tried in August 1989, he had more than 9 months in which to engage counsel but failed to do so.

Furthermore, his cross-examination of the prosecution's witnesses indicates that he clearly understood the nature of the charge and the prosecution's case against him and it has not been shown that he was in anyway prejudiced by not having the assistance of counsel. Needless to say the appellant's application for an adjournment to enable him to arrange a lawyer after he had already given sworn evidence on his behalf was far too late in the trial and was properly refused by the learned trial magistrate.

As for ground (d), there is nothing in the record of the magistrate court's proceedings which would indicate or support the appellant's allegation of "undue interruption" by the learned trial magistrate.

On the contrary, the record shows that the appellant was given the opportunity to cross-examine and did cross-examine each witness called by the prosecution.

It is also significant that the learned trial magistrate is nowhere recorded as having questioned the appellant on his sworn evidence although he could have. In the circumstances there is nothing in the court record to support this ground of appeal.

Accordingly grounds (a); (b) and (d) are dismissed.

With regards ground (c), the prosecution's case was that on the day in question the appellant had accompanied the victim and her family to their farm at Namata. Whilst there the appellant offered to teach the complainant how to drive in his car.

With some hesitation the complainant got into the front passenger seat of the appellant's car where she was seated astride the gear stick in close proximity to the appellant. The car was driven for a short distance and stopped. The appellant then indecently assaulted the complainant. Thereafter the car was driven back to its starting point where the appellant unsuccessfully tried to give $10 to the complainant.

The appellant on the other hand elected to give sworn evidence and although he denied indecently assaulting the complainant he admitted that when he changed the gear of the car, his left hand came into contact with the complainant's thigh.

The learned trial magistrate after setting out the evidence led before him by the prosecution and the appellant correctly identified the sole issue before him as one of credibility and said: 

"I have had the opportunity to see the demeanour of the Accused and the Complainant in the witness box. When cross-examined by the Accused I found her to be firm and uncontradicted. I accept her story.........."

The learned trial magistrate also considered the appellant's unsuccessful attempt to give the complainant $10 and concluded that it was an attempt on the accused's part to silence the Complainant.

This was a case which turned on the respective credibility of the complainant and the appellant and an appellate court without the benefit of hearing and seeing the witnesses testify is always reluctant to interfere with a trial court's finding unless it is convinced the trial court was wrong.

As was said by Lord Sumner in S.S. Hontestroom v. S.S. Sagaporack [1927] A.C. 37:

" ........ not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone."

Having carefully reconsidered the evidence of the witnesses as recorded in the record of proceedings and the learned trial magistrate's judgment, this court is not convinced that the learned trial magistrate has palpably misused his advantage or come to a wrong conclusion on credibility.

In the circumstances ground (c) also fails and is dismissed.

As for the sentence of 19 months imprisonment learned counsel for the State correctly points out that the maximum penalty for this offence is one of 5 years imprisonment with or without corporal punishment.

Further the offence is aggravated by the age-difference of 18 years between the appellant and the victim and the undisputed fact that the appellant was a trusted friend of the victim's father.

The appeal against the sentence is accordingly dismissed.

(D.V. Fatiaki)
JUDGE

At Suva,
23rd February, 1990.
HAA0118J.89S