Ismail v State [2016] FJCA 136; AAU0113.2014 (20 September 2016)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court of Fiji]

Criminal Appeal No. AAU0113 of 2014

[High Court Case No. HAC 115 of 2012]

BETWEEN : MOHAMMED ISMAIL

Appellant

AND : THE STATE

Respondent

Coram : The Hon. Mr. Justice Daniel Goundar

Counsel : Mr. M. Yunus for the Appellant
Ms P. Madanavosa for the Respondent

Date of Hearing : 19 September 2016
Date of Ruling : 20 September 2016

RULING

[1] Following a trial in the High Court at Lautoka, the appellant was convicted of one count each of rape, attempted rape and indecently insulting a person. The victim in all three charges was the appellant's wife. On 26 August 2014, the appellant was sentenced to a total term of 12 years' imprisonment with a non-parole period of 9 years. On 22 September 2014, the appellant gave a timely Notice of Appeal. He seeks leave to appeal his conviction only.

[2] The grounds of appeal in summary are:

1. The learned trial judge failed to give any direction on marital rape.
2. The learned trial judge did not give adequate direction on the defence of alibi.
3. The learned trial judge did not give any direction on the inconsistent evidence of the complainant.
   

[3] When the allegations arose, the appellant and the complainant were legally married but living separately. Together they had four children from that marriage. The children remained with the complainant when the appellant left them to live with his new partner. According to the complainant the appellant came to her place of domicile on two separate occasions and committed the alleged offences. The appellant elected not to give evidence. He called his aunt to give evidence that at the time of the alleged offences the appellant was at home asleep.

[4] The first ground alleges that the learned trial judge failed to give direction on marital rape. At the hearing, counsel for the appellant was unable to particularize the alleged error. Counsel for the State submits that this ground has no substance because the common law immunity for marital rape has been abolished and is no longer part of the law in England or Fiji. I accept this submission. The fact that the victim was the appellant's wife did not give him a licence to rape her. The victim did not consent to any of the alleged sexual acts. In these circumstances, the appellant was not immune from prosecution because of his marital status with the victim. Ground one is unarguable.

[5] The second ground alleges that the learned trial judge did not direct the assessors that the onus to disprove alibi was on the prosecution and that they must not convict even if they found the alibi to be false. It is not clear whether the appellant had given a notice of alibi in the trial court. But alibi evidence was adduced. The State concedes that the learned trial judge did not give adequate direction on the defence of alibi. The summing up contains no direction on how the assessors were to consider the alibi defence. Ground two is arguable.

[6] The third ground alleges that the learned trial judge did not direct on the complainant's inconsistent evidence. In her evidence the complainant said that she did not raise alarm because the other houses were far away and that she did not want her children to be exposed to the assault on her. She also said that when she told the appellant that she had reported the incident to the police, he walked to his mother's house which was 20 feet away. I am not convinced that there is a contradiction in the evidence. The assessors and the trial judge did not find any contradiction. They believed the complainant. Even if there was a contradiction, the contradiction was peripheral. Ground three is unarguable.

Result
Leave granted on ground two only.
Leave refused on grounds one and three.

.............................................

Hon. Mr. 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 Respondent