State v Fong [2015] FJCA 122; AAU0092.2013 (13 March 2015)

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

CRIMINAL APPEAL NO: AAU 0092 OF 2013
[High Court Case No: HAC 300/2011S]

BETWEEN:

THE STATE
Appellant

AND:

RODNEY AUGUSTINE FONG
Respondent

Coram : Goundar JA
Counsel : Ms P. Madanavosa for the Appellant
Mr. D. Sharma for the Respondent

Date of Hearing : 21 July 2014
Date of Ruling : 13 March 2015

RULING

[1] The Respondent was charged with three representative counts of sexual assault. On 20 August 2013, he was acquitted on all three charges after a trial in the High Court at Suva.

[2] The State seeks leave to appeal against the acquittal pursuant to section 21(2) of the Court of Act, Cap12. The Notice of Appeal was filed on 19 September 2013. The Notice is within time.

[3] The Respondent takes a preliminary objection to the State's appeal. Counsel for the Respondent submits that the State's appeal is detective because the State has not filed a Motion seeking leave as required by the Court of Appeal Rules.

[4] Rule 35 governs filing of criminal appeals in the Court of Appeal. Rule 35 states:

(1) An appeal to the Court of Appeal shall be by way of rehearing and shall be brought by notice of Motion (in these Rules referred to as "notice of appeal").

(2) Subject to the provisions of section 22(1) of the Act, notice of appeal may be given either in respect of the whole or in respect of any specified part of the decision of the Court below.

(3) A person desiring, under the provisions of the Act, to appeal to the Court of Appeal, shall commence his appeal by sending to the Registrar a notice of appeal or notice of application for leave to appeal, or notice of application for extension of time within which such ... notice shall be given, as the case may be, in the form of such notices respectively set forth in the Second Schedule.

(4) In addition to complying with Rule 5 such notice of appeal shall precisely specify the grounds (including, if any, questions of law) upon which the appeal is brought.

(5) A notice of appeal shall, in addition to being filed with the Registrar, be served upon all parties to the proceedings in the Court below who are directly affected by the appeal; and subject to the provisions of Rule 21 it shall not be necessary to serve the notice on parties not so affected.

[5] A Notice of Appeal or application for leave to appeal against conviction or sentence may be given in the Form 4 set out in the Second Schedule. The Notice of Appeal filed by the State is in Form 4 and complies with Rule 35. The Notice was filed within the 30-day appeal period provided by section 26(1) of the Court of Appeal Act, Cap. 12. I find the Respondent's objection is misconceived.

[6] I now proceed to consider whether the grounds of appeal advanced by the State are arguable, which is to test for leave. The grounds of appeal are:

1. That the learned trial judge erred in law and in fact when he stated to the assessors during his summing up that the medical reports had a crucial bearing on the case;
   
2. That the learned trial judge erred in law and in fact when he stated in his summing up that the medical reports strengthened the accused's denial and credibility, and dented the credibility of the complainant;
   
3. That the learned trial judge erred in law when directing the assessors to consider the medical report when assessing the complainant's credibility and such direction implied that her evidence could not be accepted without corroboration.
   

[7] All these grounds relate to the trial judge's directions on the medical evidence at para. 37 of the Summing Up:

"So, in a nutshell, the medical report appear not to assist the prosecution's case. It provided no evidence to confirm the complainant's allegations on the accused inserting his finger into her anus, on numerous occasions, between September 2009 and June 2011. On the perforation of the complainant's hymen, the doctor pointed to various possible causes...it must be noted that, the complainant's main allegation is the accused poking her anus NOT her vagina, on numerous occasions, at the material time. Both medical reports appear not to support the complainant's allegations. If you accept the findings in the medical reports, it would strengthen the accused's denial, and his credibility, as a witness. It would also dent the complainant's credibility as a witness. However, what you make of the medical report is entirely a matter for you".

[8] The prosecution's case was wholly depended on the complainant's evidence. The appellant was the complainant's step-father and guardian when the allegations arose. The complainant's evidence was that she was subjected to a prolonged sexual abuse by the Respondent over a period of two years. The nature of abuse was generally fondling of breasts and genitalia. Eventually, she complained to her mother. Medical examination revealed nil injuries. At trial, the examining doctor was called to offer an explanation for the lack of injuries. The explanation was that the complaint was made late and the injuries heal within two to three months.

[9] At this stage, it is not clear why the prosecution led the medical examination especially when it did not have any probative value. The trial judge's directions on the medical evidence assume that the complainant sustained injuries and because the medical examination revealed nil injuries, the complainant was not a truthful witness. The directions are arguably misdirections on the evidence.

Result
[10] Leave to appeal against acquittal is granted.

.....................................
Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:

Office of the Director of Public Prosecutions for the Appellant

R. Patel Lawyers for the Respondent