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Kumar v. State

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Kumar v. State

Court of Appeal of Fiji

4 March 2015

CRC Provisions
Article 3: Best interests of the child
Article 19: Protection from violence

Domestic Provisions:
Section 10, Juveniles Act: Evidence provided by Children
Section 26, Constitution: Equality before law
Section 41, Constitution: Best interests of the child

Case Summary:

The appellant was convicted of the rape of a seven year old child and sentenced to 10 years’ imprisonment. The conviction was wholly based upon the victim’s evidence, aged eight when the trial began, which was not corroborated. The appellant appealed against his conviction on the grounds that there is a requirement under the law to corroborate evidence provided by children under 14 years of age and the trial judge had failed to apply the relevant law correctly.

Issue and resolution:
Access to justice. Whether the requirement for evidence provided by children be corroborated was constitutional. The Court found the requirement unconstitional and dismissed the appeal.

Court reasoning:
The Court considered whether the appellant was denied his constitutional right to a fair trial when the trial judge found no requirement to corroborate the victim’s evidence. The law on corroboration developed historically to deal with witnesses who were considered unreliable, courts would be required to obtain independent testimony in order to convict the accused. The Juveniles Act in particular states that child witnesses under the age of 14 years are subject to a competency inquiry. The child must demonstrate an understanding of the nature and consequences of giving an oath before being deemed competent to give sworn evidence, such evidence remains subject to a warning on reliability. A child who fails the test is allowed to give unsworn evidence but this must be corroborated, if not the accused must be acquitted.

The Court took into account the High Court case of State v. AV (2008) which found the requirement for corroboration of evidence for children under 14 was unconstitutional. Section 26 of the Constitution provides that every person is equal before the law and forbids discrimination against a person on the ground of age. Treating the evidence of children under the age of 14 years differently is therefore inconsistent with the right to equality and freedom from discrimination. The Court considered international jurisprudence which developed to clearly recognised that laws about children as unreliable witnesses were based on myths and prejudices of the 19th century. Many jurisdictions such as England and Canada have removed such restrictions by bringing legislative reforms to abolish biases against children.

The Court ruled that every child in Fiji has a constitutional right to be protected from abuse or any form of violence. Any law that restricts child victims from testifying about their abuse cannot be regarded as being in the child’s best interest and is inconsistent with the children’s right to equality before the law. There is a growing recognition that child sexual abuse is often perpetrated by family members, close family friends or trusted community figures. The Court expressed concern that in those circumstances corroboration and independent evidence implicating the accused will rarely exist. The competency inquiry and the requirement for corroboration for child witnesses have no legitimate purpose in criminal proceedings involving children as victims of sexual abuse. Therefore, both the competency inquiry and requirement for corroboration for child witnesses in criminal proceedings are unconstitutional.

Excerpts citing CRC and other relevant human rights instruments:

[31]  Every child in Fiji now has a constitutional right to be protected from abuse or any form of violence. This right is expressly provided by section 41 (1) (d) of the Constitution. Rape is the worst kind of sexual abuse that can be inflicted on a child. The courts have a constitutional duty to protect the children from any form of sexual abuse by taking into consideration matters that are in their best interests. Section 41 (2) of the Constitution states: “The best interests of a child are the primary consideration in every matter concerning the child.”

[34] Children below the age of 14 years are the most vulnerable victims, and therefore, the need for protection of law is greater. A law that prohibits prosecution and conviction of persons, who commit crime against children regardless of their age, deprives the children due process of law. Such law has no place in our criminal justice system. This interpretation is consistent with the Convention on the Rights of the Child which Fiji ratified in 1993. By ratifying the Convention, the State is obliged to take all appropriate legislative measures to protect the children of this country from all forms of physical or mental violence, injury or abuse, or exploitation or sexual abuse. The Convention also allows for judicial involvement to carry out the protective measures for children.

CRIN Comments
CRIN believes this decision is consistent with the CRC. Article 19 requires States to take all appropriate measures to protect children against sexual violence and to investigate such abuse with judicial involvement where appropriate. Under Art 12 States are required to ensure children have the opportnuity to be heard in any judicial proceeding affecting the child. The UN Guidelines on Jusitce Involving Child Victims and Witnesses of Crime protect children from age discrimination in judicial proceedings “Age should not be a barrier to a child’s right to participate fully in the justice process. Every child should be treated as a capable witness, subject to examination, and his or her testimony should not be presumed invalid or untrustworthy by reason of the child’s age alone as long as his or her age and maturity allow the giving of intelligible and credible testimony, with or without communication aids and other assistance”. (para.18)

[2015] FJCA 32

Link to Full Judgment:

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.