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Upadhyay v State [2014] FJHC 420; HAA30.2013S (12 June 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 30 OF 2013S

BETWEEN

OM PRAKASH UPADHYAY
APPELLANT

AND

THE STATE
RESPONDENT

Counsels : Mr. F. Vosarogo for Appellant
Mr. R. Prakash for Respondent
Hearing : 24 March, 2014
Judgment : 12 June, 2014

JUDGMENT

1. On 8 November 2012, in the presence of his counsel, the appellant (accused) pleaded not guilty to the following charge:
   

Statement of Offence

INDECENT ASSAULT: Contrary to section 212(1) of Crimes Decree No. 44 of 2009.

Particulars of Offence

OM PRAKASH UPADHYAY, on the 25th day of August, 2012 at Nasinu in the Central Division unlawfully and indecently assaulted one CYNTHIA RAYA KHAN.

2. The matter went to trial on 8 January 2013. The prosecution called three witnesses – the complainant (PW1), her mother (PW2) and PW1's brother (PW3). The court found a case to answer against the accused. He choose to give sworn evidence, in his defence (DW1). He called no witness.
   
3. On 21 June 2013, the court delivered a written judgment (12 pages), finding the accused guilty as charged. On 4 July 2013, the court sentenced the accused to 18 months imprisonment, and suspended the same for 3 years. In addition, the accused was ordered to pay $500 to the complainant as compensation, and was fined $1,000, in default, he was to spend 200 days in prison.
   
4. The accused was not happy with the above decision. He appealed against his conviction and sentence. He filed the following grounds:
   

"...5.1 THAT the Learned trial Magistrates erred in law and fact by accepting the evidence of PW3's reference to an attempt by Appellant to bribe a Police Officer who was not even called to give evidence and such evidence being hearsay which finding was adverse and detrimental to the decision against the Appellant when such an decision was demonstrably perverse, unsafe or unsatisfactory because of its hearsay nature.

5.2 THAT the Learned trial Magistrate's finding of guilt beyond all reasonable doubt and convicting of the Appellant was unreasonable, unsafe and unsatisfactory as the evidence of the Prosecution Witnesses were so discredited to the point where no reasonable tribunal properly informed of the facts would convict on the evidence.

5.3 THAT the Learned trial Magistrate failed to give due consideration to the material inconsistencies in the evidence of PW1, PW2 and PW3 and in particular, the following:

(i) The evidence of PW1 not raising alarm toward PW2 and PW3 of the actions of the Appellant; and

(ii) PW2's evidence that she heard conversation of the Appellant and PW1 but that the Complainant did not raise any alarm at the time of the incident; and

(iii) PW3's evidence that he was able to see and hear the Appellant and PW2 from where he was sitting down.

But neither PW2 and/or PW3 said in evidence that there was anything suspicious and or untoward that they hear and or see.

5.4 THAT the Learned trial Magistrate misdirected himself on the law of probability [para 31] when he found that the Complainant was not capable of disclosing personal information to the Appellant which finding led the Court to believe that the Appellant was lying without ascertaining the four limbs of the test in Rev v Lucas [1981] QB 720 which misdirection and lack of adequate directions was prejudicial to the Appellant.

5.5 THAT in all the circumstances of the case, there has been a miscarriage of justice by reason of the inconsistency of the evidence and the judgment and the failure of the learned trial magistrate to approach such inconsistency judiciously is tantamount to preservation of a judgment that cannot be supported by evidence.

5.6 THAT the Learned trial Magistrates failed to properly consider and balance the evidence of the Appellant and the evidence of PW1 in a fair and deliberate manner which resulted in a biased view of the evidence by the Court ultimately resulting in the finding of guilt against the Appellant.

5.7 THAT the Learned trial Magistrate erred in law by declining to weigh the evidence of the Prosecution and the Defence evenly and in a balanced and fair manner in order to arrive at a more palatable and consistent with the evidence and the absence of a fair and balanced approach precipitated to a conviction that is unsafe considering all the circumstances of the case.

5.8 THAT the Learned trial Magistrate's judgment did not adequately address the evidence by the Appellant and or evidence in favour of the Appellant and such inadequacy of the trial magistrate's judgment was prejudicial to the Appellant in the Court's judgment.

5.9 THAT the Learned trial Magistrate's findings of fact were not consistent with the evidence produced at trial and such inconsistency affected the proper adjudication of the evidence and the trial process.

5.10 THAT the sentence of against the Appellant was harsh and excessive in all circumstances of the case..."

5. We will now discuss the appeal grounds.
   

(i) Conviction Appeal: Grounds No. 5.1 to 5.9:

6. I have decided to deal with the above grounds together as one. This is because, all the grounds involved, the issue of the role of the trial magistrate as judge of fact and judge of law. As I've said in so many appeal cases, in a criminal trial in the Magistrate Court, it is well settled and well understood that, the trial magistrate is judge of fact and judge of law. The litigants – that is, the State and the accused – bring their witnesses to court, in an attempt to persuade the trial magistrate, as judge of fact, to accept their version of events. Of course, the burden is on the prosecution to prove the accused's guilt beyond reasonable doubt, and that burden stays with them from the start to the end of the trial.
   
7. In this case, the prosecution called the complainant (PW1), her mother (PW2) and her brother (PW3). The alleged indecent assault occurred in the accused's flat in the presence of the accused and the complainant herself. No-one else was there to witness the event. In the final analysis, the case boils down to the word of the complainant, as against the accused. The accused choose to give sworn evidence, in his defence. At the end of it all, the trial Magistrate, as judge of fact, accepted the complainant's version of events. He rejected the accused's sworn denials. In other words, he found the complainant a credible witness, and as judge of fact, was entitled to accept her evidence that, the accused indecently kissed her, touched her breast and thighs, and suggested to her to sleep with him, at the material time. He found the accused not a credible witness, and therefore was entitled, as judge of fact, to reject his sworn denials. Because of the above, all the accused's conviction appeal grounds are dismissed.
   

Sentence Appeal Ground No. 5.10:

8. I have carefully read and considered the court record and the learned Magistrate's sentencing remarks. In my view, he applied the correct law and procedure. He identified the correct tariff of 1 to 4 years imprisonment for indecent assault. He identified the aggravating and mitigating factors. He started with 18 months imprisonment. He made the usual addition and deduction for the aggravating and mitigating factors. Then he arrived at his sentence, as described in paragraph 3 hereof. In my view, the sentence was not harsh and excessive. I accordingly dismiss this ground.
   

13. In summary, I dismissed the appellant's appeal against conviction and sentence.

Salesi Temo

JUDGE

Solicitor for Appellant : Mamlakah Lawyers, Suva.

Solicitor for Respondent : Office of the Director of Public Prosecution, Suva.