Moceituba v State [2015] FJCA 177; AAU105.2014 (23 December 2015)

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

CRIMINAL APPEAL NO: AAU0105 OF 2014
(High Court Case No: HAC 114/2013)

BETWEEN:

SEMI MOCEITUBA
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA

Counsel : Mr. M. Yunus for the Appellant
Ms S. Puamau for the State

Date of Hearing : 8 December 2015
Date of Ruling : 23 December 2015

RULING

[1] Following a trial in the High Court at Lautoka, the appellant was convicted on two counts of rape and sentenced to a total term of 13 years' imprisonment with a non-parole period of 10 years. This is a timely application for leave to appeal against conviction and sentence.

[2] The initial grounds of appeal were filed in person by the appellant. Subsequently, the Legal Aid Commission approved representation for the appellant, and on 1 October 2015, his counsel filed an Amended Notice seeking leave to appeal against conviction and sentence on the following grounds:

1. The learned trial judge erred in law and in fact when he failed to direct and or guide the assessors properly on the significance of the recent complaint evidence.

2. The learned trial judge erred in law and in fact when he failed to remind the complainant of the importance of telling the truth.

3. The learned trial judge erred in law when he failed to deduct the remand period from the interim total as a separate factor.

[3] The victim was a 7-year old girl. It is not clear whether she gave sworn or unsworn evidence. She gave evidence of two incidents of digital penetration of her vagina by the appellant. The victim's mother gave evidence of the complaint made to her by the victim. The trial judge gave no direction on recent complaint evidence. The assessors expressed unanimous opinion that the appellant was guilty on both counts. The trial judge agreed and convicted the appellant. When discounting for the mitigating factors, the trial judge subsumed the remand period. Counsel for the State in her written submissions concedes that all three grounds of appeal are arguable. The test for leave has been satisfied.

Result
Leave granted.

Hon. Justice Daniel Goundar
Justice of Appeal

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