Sunia v State [2015] FJCA 87; AAU0017.2014 (15 June 2015)

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

CRIMINAL APPEAL NO.AAU 0017 OF 2014
[High Court Criminal Case No. HAC046 of 2012]

BETWEEN:

ALUSIO SUNIA
Appellant

AND:

THE STATE
Respondent

Coram : Hon. Mr. Justice Daniel Goundar
Counsel : Mr. M. Yunus for the Appellant
Ms J. Prasad for the Respondent

Date of Hearing : 9 June 2015
Date of Ruling : 15 June 2015

RULING

[1] The appellant seeks an extension of time for leave to appeal against his rape conviction only. He was also convicted of indecent assault and indecently annoying a person. He is not challenging those convictions on appeal.

[2] This appeal is out of time by about four months. The appellant says he was not aware of his right of appeal. His sole ground of appeal is:

The learned Trial Judge erred in law and in fact in failing to direct assessors on an alternative verdict or lesser charge of attempted rape in respect of the entirety of evidence adduced in the trial.

[3] At trial, the appellant gave evidence. His evidence was that he tried to have sexual intercourse but was not able to penetrate the complainant's vagina. His defence was that he was not guilty of rape but guilty of the lesser offence of attempted rape. In his summing up, the trial judge did not direct the assessors to consider the lesser offence of attempted rape. The State concedes this issue is arguable. In my judgment, the State's concession is fair.

Result
Extension of time is granted.
Leave to appeal against conviction is granted.

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

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