Savou v State [2013] FJCA 118; AAU0071.2011 (15 November 2013)

IN THE COURT OF APPEAL, FIJI
APPELLATE JURISDICTION

Criminal Appeal No: AAU0071/2011
(from HAC 067of 2010)

BEFORE THE JUSTICE OF APPEAL, HON. JUSTICE PAUL K. MADIGAN

BETWEEN:

BENJAMIN SAVOU
Appellant

AND:

THE STATE
Respondent

Counsel : Ms. N. Nawasaitoga (L.A.C.) for Appellant
Mr L. Fotofili for the State

Dates of Hearing : 2, 5 July 2013
18 October 2013
1 November 2013
Date of Judgment : 15 November 2013

RULING

1. This appellant applies for Leave to appeal a conviction for rape after trial in the High Court at Suva on the 10th June 2011. He has made a timely appeal and relies on three grounds of appeal filed on his behalf by Legal Aid Counsel.

2. Appellant was originally charged with three offences;

1. Assault of Vasiti Navatuwai.
2. Rape of Vasiti Navatuwai.
3. Wrongful confinement of Vasiti Navatuwai.
   

3. When he first appeared in the High Court on the 7th June, 2011 he entered a plea of guilty to the assault count in front of the assessors and the trial proceeded on the two remaining counts. The assessors after trial found him guilty of the rape but not of the wrongful confinement. The Judge concurred and it was the judgment of the Court that he be convicted of rape and acquitted of the wrongful confinement.

4. The brief facts of the case were that the victim and the appellant were in a romantic relationship which was "souring". In the early hours of 7 March 2010, the complainant was at the home of the appellant in Navua. She was assaulted by him with punches, kicks and stepping on one of her thighs. He then forcibly raped her without her consent and kept her in his bedroom for two days.

5. The grounds of appeal filed (very late) by the appellant are:

1. The learned trial Judge erred in law when he informed the assessors that the Appellant had pleaded guilty to the first count of assault occasioning actual bodily harm which was not relevant to the trial, thereby prejudicing the minds of the assessors and causing substantial miscarriage of justice.
   
2. The learned trial Judge erred in law when he did not delete paragraph 9 of the agreed facts dated 7th June, 2011 in respect of the assault on the complainant by the Appellant which was prejudicial to the Appellant, thereby causing substantial miscarriage of justice.
   
3. The Appellant was prejudiced because he was unrepresented thereby causing substantial miscarriage of justice.
   

6. Although grounds one and two are prayed as errors of law alone, they are quite evidently perceived errors of law and fact and as a result they can only be advanced before the Full Court with leave. Similarly the third ground is a prayer in fact alone and again needs leave to proceed.

7. On the first day of trial two events occurred, events which are crucial to this application. First, the appellant entered pleas to the three counts on the information in front of the assessors including a plea of guilty to the assault count. Secondly the appellant told the trial Judge that he waived his rights to counsel and would defend himself.

8. When the Judge told the assessors that the accused had pleaded guilty to assault, he was not telling them anything they didn't know. In addition and despite the agreed facts the complainant (PW1) gave evidence of the assault in some detail. The assessors were fully aware of the situation before the learned Judge addressed them and as a result the summing up did not make the situation any worse for the appellant. Grounds 1 and 2 of the appeal are unarguable and are bound to fail.

9. When the appellant made his first appearance at the Navua Magistrate's Court on the 12th March 2010 in answer to these charges he had his rights to legal representation explained to him. He elected to instruct private Counsel, however when he made his first appearance in the High Court his election was to represent himself. These choices on different days show that he was well aware of his rights to counsel and he exercised those rights. There is no evidence from the transcript that he was prejudiced by not being represented. The notes of proceedings reveal that he was able to conduct relevant and incisive cross-examination of the State witnesses. Prejudice to the applicant cannot in the circumstances be an arguable ground.

10. Leave to appeal to the full Court on any of these grounds of appeal is refused.

Paul K. Madigan
Judge of Appeal

At Suva
15 November 2013