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Fiji Court of Appeal Quashes 12-Year Rape Sentence

A 44-year-old man serving a 12 year sentence walked free on Friday after the Fiji Court of Appeal quashed his conviction for rape delivered at the Suva High Court in
19 Sep 2017 10:00
Fiji Court of Appeal Quashes 12-Year Rape Sentence

A 44-year-old man serving a 12 year sentence walked free on Friday after the Fiji Court of Appeal quashed his conviction for rape delivered at the Suva High Court in October, 2013.

The Fiji Court of Appeal noted that at the ruling for the conviction of Dinesh Prasad, High Court Judge Justice Janaka Bandara did not give reasons for finding him guilty.

“It was noted that the trial judge while accepting the unanimous opinions of the three assessors and concurred with their opinion in finding guilty to both counts of rape, did not give reasons for finding the appellant guilty,” ruled the Fiji Court of Appeal.

Mr Prasad was convicted by Justice Bandara on two counts of rape and he was sentenced to 12 years imprisonment with a non parole period of 10 years on October 31, 2013 and had been imprisoned at the Korovou Prison in Suva.

Defence lawyer Iqbal Khan, on instructions from his client, and within time then filed a Notice of Appeal and Leave to appeal against conviction and sentence to the Court of Appeal.

On January 15, 2016; Court of Appeal Judge Justice Daniel Goundar refused Mr Prasad’s Leave to Appeal against conviction and sentence stating that the five grounds of appeal were not arguable and therefore application for Leave to Appeal Against conviction and sentence were refused.

The appeal was filed on five grounds but Justice Goundar cited all grounds as unarguable: “The grounds of appeal advanced against sentence complain of severity rather than an error in the sentencing discretion. A total sentence of 12 years’ imprisonment is well within the tariff for rape,” Justice Goundar had ruled.

Mr Khan then brought his case before the Fiji Court of Appeal on the grounds that the learned judge:

  •  and the assessors did not adequately consider the Medical Report of the complainant.
  •  did not analyse all the facts before him before he made a decision
  •  failed to make an independent assessment of the evidence, before affirming a verdict which was unsafe, unsatisfactory and unsupported by evidence, giving rise to a grave miscarriage of justice.
  •  erred in law and in fact and did not direct himself and the assessors to refer to any summing up the possible defence on evidence and as such by his failure there was a substantial miscarriage of justice.
  •  that there were serious doubts in the prosecution case and as such the benefit of doubt ought to have been given to the appellant.

On the Appeal Against sentence, Mr Khan filed that it was harsh, excessive and wrong in principle.

Mr Khan submitted on the grounds of Appeal Against conviction that among other points:

  •  the medical report was inadequately and the prosecution failed to prove the victim was raped.
  •  the learned trial Judge when he came to a decision in upholding the guilty verdict of the assessors when he failed to analyse all the facts before him himself.
  •  the learned judge failed to make an independent assessment of the evidence
  •  there was a miscarriage of justice when the learned judge upheld the guilty verdict of the assessors
  •  the learned trial Judge after accepting the verdict of the assessors without himself independently analysing the evidence Mr Prasad guilty on each count and accordingly convicting the appellant on each Count caused a substantial miscarriage of justice.

The ruling is believed to be the first case where the Fiji Court of Appeal, on a leave application filed by lawyer Mr Khan, heard the full appeal and quashed the conviction despite the fact the single judge of Court of Appeal Justice Goundar found the appellants five grounds of appeal unarguable.

Edited by Rusiate Mataika

Feedback:  charles.chambers@fijisun.com.fj

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