Selebula v State [2014] FJCA 225; Criminal Appeal AAU0017.2012 (8 April 2014)

IN THE COURT OF APPEAL
On appeal from the High Court

CRIMINAL APPEAL NO: AAU0017 OF 2012
(High Court Case No. HAC 148 of 2010S)

BETWEEN:

SAILOSI SELEBULA
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA

Counsel : Ms N. Nawasaitoga for Appellant
Mr. L. Fotofili for Respondent

Date of Hearing : 3 April 2014
Date of Ruling : 8 April 2014

RULING

[1] Following a trial in the High Court at Suva, the appellant was convicted of rape of his 8-year old step daughter. Before the trial commenced, he pleaded guilty to two counts of indecent assault against the same victim. After the conclusion of the rape trial, the trial judge sentenced the appellant to a total term of 14 years imprisonment with a non-parole period of 11 years.

[2] This is an application for leave pursuant to section 21(1)(b) of the Court of Appeal Act to appeal against conviction on a ground which involves a question of mixed law and fact.

[3] Initially, counsel for the appellant filed two grounds of appeal, but at the leave hearing, ground one was withdrawn. The ground pursued by the appellant reads:

"2. The Learned Trial Judge erred in law and in fact when he failed to direct and guide the assessors on how to approach the answers contained in the Caution interview and the weight to be attached to the disputed confession considering that he denied the allegation in his evidence in Court and in his Charge Statement".

[4] The test for leave is whether the ground is arguable before the Full Court (Naisua v State Criminal Appeal No. CAV0010 of 2013). A single judge has the power to grant leave (section 35(1) of the Court of Appeal Act). A single judge also has the power to dismiss an appeal as being frivolous (section 35(2) of the Court of Appeal Act). The test for a frivolous appeal is that the appeal cannot possibly succeed (Naisua's case).

[5] The question posed in this appeal is whether the trial judge's directions on the appellant's caution statement are correct in law and fact.

[6] At trial the appellant was unrepresented. The trial judge in his summing up at paragraph 22 clearly directed the assessors to make allowances for that fact. The trial judge then reminded the assessors at paragraph 23 what the appellant said in his evidence.

[7] At paragraph 24 of the summing up the trial judge said:

"He accepts that he told the police that he had penetrated Mafi's vagina; he explains that by saying that the police told him to follow what Mafi had said and to agree with it and the rest was for him to explain to the judge. He said that his admissions to the police are not true, but what he said after he had been charged is the truth. He said that one of the police officers spoke to him alone and when that police officer read out the caution interview he told the police officer that some of the things in it were not correct but he was told by the officer that he had to follow what was written".

[8] Counsel for the appellant submits that the trial judge should have directed the assessors that the weight of the confession was a matter for them. The appellant's case was that he did make submissions in his caution interview but those admissions were not true. The assessors had to consider whether those admissions were true. Paragraph 24 of the summing up accurately identifies the issue the assessors had to consider. There was no need for the trial judge to give a further direction or to use the word 'weight' in his directions on the admissions made by the appellant in his caution interview.

Result

[9] I am satisfied that ground of appeal is not arguable, and the appeal cannot possibly succeed and is frivolous. The appeal is dismissed under section 35(2) of the Court of Appeal Act.

Hon. Justice D. Goundar
JUSTICE OF APPEAL