Tukainiu v State [2014] FJCA 207; AAU0086.2013 (5 December 2014)

IN THE COURT OF APPEAL
[On appeal from the High Court]

CRIMINAL APPEAL NO. AAU0086 of 2013
[High Court Case No. HAC116/12S]

BETWEEN:

TUIMATEO TUKAINIU
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. J. Savou for the Appellant
Ms P. Madanavosa

Date of Hearing : 3 October 2014
Date of Ruling : 5 December 2014

RULING

[1] The appellant was convicted on one count of rape after a trial in the High Court at Suva. On 5 April 2013, he was sentenced to 9 years' imprisonment with a non-parole period of 7 years. On 31 July 2013, the appellant filed a notice of appeal against his sentence. The notice was out of time by 2½ months. The notice is dated 25 April 2013 but by the time it was forwarded to the Court of Appeal Registry by the Department of Corrections, the appeal was out of time.

[2] The real issue is whether the appeal has merits. The appellant has now engaged legal aid counsel. Upon receiving legal advice, the appellant elected to appeal against conviction only. He is not pursuing his sentence appeal.

[3] The grounds of appeal against conviction are:

(i) That the Learned Trial Judge erred in law and in fact when he did not properly direct the assessors on the essential elements of the charge of rape contrary to section 207(1)(2)(a) of the Crimes Decree No. 44 of 2009 resulting in a substantial miscarriage of justice.

(ii) That the Learned Trial Judge erred in law and in fact when he did not direct and/or direct the assessors on the cross-examination of the victim resulting in a substantial miscarriage of justice.

(iii) That the Appellant was prejudiced due to lack of legal representation resulting in a substantial miscarriage of justice.

[4] Grounds 1 and 3 are connected. The appellant's contention is that the trial judge erred in law by not giving any directions on an essential element of rape, that is, whether the appellant knew the complainant was not consenting when he had sexual intercourse with her.

[5] At trial, the appellant did not dispute sexual intercourse. His defence was that the complainant had consented to sex. The complainant gave evidence that her consent was obtained by force by the appellant.

[6] In his summing up, the learned trial judge directed the assessors that rape required proof of sexual intercourse without the consent of the complainant. The learned trial judge gave no direction that the prosecution was required to prove that the appellant knew the complainant had not consented. Whether knowledge of lack of consent is an element of rape is, of course, a question of law alone. Section 21(1)(a) of the Court of Appeal Act says leave is not required for a ground that raises a question of law alone.

[7] The appellant's further contention is that he was prejudiced by lack of legal representation at trial because he was not able to seek re-directions on law after the trial judge had delivered his Summing Up. This ground is arguable.

[8] The second ground is vague and fails to particularise the relevant evidence that was elicited from the complainant under cross-examination, causing a miscarriage of justice. Ground two is not arguable.

Result
[9] Extension of time to appeal is allowed.

[10] Appeal may proceed on ground one as of right.

[11] Leave refused on ground two.

[12] Leave granted on ground three.

Hon. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Director of Legal Aid Commission for Appellant
Office of the Director of Public Prosecutions for State