Hakik v State [2017] FJCA 184; AAU0047.2015 (17 October 2017)

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

CRIMINAL APPEAL NO. AAU0047 of 2015
[High Court Case No. HAC229 of 2011]

BETWEEN:

MOHAMMED HAKIK
Appellant

AND:

THE STATE
Respondent

Coram: Hon. Mr Justice Daniel Goundar

Counsel: Mr M Fesaitu for the Appellant
Mr Y Prasad for the Respondent

Date of Hearing: 11 October 2017

Date of Ruling: 17 October 2017

RULING

[1] Following a trial in the High Court at Lautoka, the appellant was convicted of rape and sentenced to 13 years, 9 months imprisonment with a non-parole period of 11 years. This is an application for leave to appeal against conviction only pursuant to section 21(1) of the Court of Appeal Act 1949. Section 33(1) of the Court of Appeal Act 1949 gives a single judge power to grant leave. The test for leave is whether the appeal is arguable before the Full Court.

[2] The grounds of appeal are:

(i) The learned trial Judge in the voir dire ruling did not provide a proper analysis in reaching that the Appellant’s caution interview was voluntarily made and not created out of oppression.

(ii) The learned trial judge’s direction to the assessors in paragraph 58 of the summing up is an indication that the Appellant carries the burden of proving innocence.

Facts

[3] The appellant was in a de facto relationship with the victim’s biological mother. He had two children of his own from another relationship. At time of the alleged incident, the victim was 12 years old. She had been living with the appellant since she was 3 years old. The appellant’s minor son was also living with him. The incident occurred in November when the victim was left alone at home with her younger step-brother. The victim’s evidence was that the appellant removed her clothes and rubbed his penis on her vagina. The incident was witnessed by the appellant’s son who was sleeping on separate bed in the same bedroom. When the son asked the appellant what he was doing, he told him to turn around and sleep. When their mother returned home the son told her about the incident. The victim also reported the incident to her mother but she was too afraid to do anything. A neighbour reported the matter to police. Medical examination revealed that the victim’s hymen was not intact, indicating some form of intrusion. Under caution, the appellant made a full confession.

Admissibility of confession

[4] Admissibility of evidence involves a question of law alone. Leave is not required to appeal on a ground that involves a question of law alone. In the present case, the appellant’s contention is that the trial judge did not make a proper assessment of the evidence before admitting the confession in evidence. The admissibility of the disputed confession was challenged on the ground that it was extracted using force and violence. The appellant also disputed admissibility on the ground that it was fabricated. There was an apparent contradiction in the grounds. On one hand, the appellant was saying that his confession was extracted using force, while on the other hand he was saying that he did not make any confession and that the disputed confession was fabricated by police.

[5] The learned trial judge determined the admissibility of the appellant’s confession in a voir dire hearing. Written reasons comprising of five pages were given for the ruling. The appellant’s contention that the evidence was not properly analysed is incorrect. Detailed reasons have been given. In the ruling, the learned trial judge summarised the evidence for both the prosecution and the defence. The ruling depended on questions of credibility. The learned trial judge accepted the evidence of the prosecution witnesses as true and found the prosecution had proved voluntariness beyond a reasonable doubt. The learned trial judge applied the correct principles to rule the confession admissible. This ground cannot possibly succeed and is frivolous.

Misdirection on burden of proof

[6] The question whether the learned trial judge misdirected on the burden of proof is a question of law alone. The appellant’s contention is that the learned trial judge misdirected the assessors by telling them to consider that the appellant carried the burden to prove his innocence when he elected to give evidence. There is no substance in this argument. The learned trial judge gave very clear direction in paragraphs 57 and 58 that the appellant was not required to prove anything as follows:

I must remind you that when an accused person has given evidence he assumes no onus of proof. That remains on the prosecution throughout. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.

You will generally find that an accused gives an innocent explanation and one of the three situations then arises:

• (i) You may believe him and, if you believe him, then your opinion must be Not Guilty. He did not commit the offence.
• (ii) Alternatively without necessarily believing him you may say 'well that might be true'. If that is so, it means there is reasonable doubt in your minds and so again your opinion must be Not Guilty.
• (iii) The third possibility is that you reject his evidence as being untrue. That does not mean that he is automatically guilty of the offence. The situation then would be the same as if he had not given any evidence at all. He would not have discredited the evidence of the prosecution witnesses in any way. If prosecution evidence proves that he committed the offence then the proper opinion would be Guilty.
  

[7] A similar objection was taken to above direction in Jabar v State unreported Cr App AAU026 of 2012; 27 May 2016. The Court rejected the objection and said at [17]:

The learned trial judge was perfectly correct when he reminded that the accused had no onus to prove and it remains on the prosecution throughout. It means till the end of the case i.e. even after the defence case, the burden is on the prosecution. In the next line, the trial judge emphasised the assessors to consider the evidence of the accused. Had the judge not given that direction, it would have been argued as an omission. In the 4th sentence, he succinctly states that if the accused was believed then he should not be guilty. When the judge says that "do not feel sure of guilt" it means that even if there is reasonable doubt, then also the accused should be found not guilty. In the 5th sentence i.e just before the disputed two sentences, the judge made it crystal clear that even if the accused evidence was rejected, he is not automatically guilty. Therefore he warned the assessors not to convict just because evidence of the accused was rejected. The word 'automatically' must be read in conjunction with last sentence of the paragraph. It reminds the Assessors that the responsibility is with the prosecution to prove the offence. (per Jayamanne JA)

[8] In the present case, the learned trial judge gave impeccable direction on the burden of proof. The prosecution evidence against the appellant was overwhelming. The victim’s evidence was supported by the appellant’s son who saw the appellant on top of the victim in a compromising position. At the trial, the appellant did not challenge the veracity of his son’s evidence. The victim’s evidence was further supported by the appellant’s confession, the recent complaint evidence and the medical evidence. Given the overwhelming evidence against the appellant, I am satisfied that this is a frivolous appeal to warrant the exercise of my power under section 35(2) of the Court of Appeal Act 1949. A frivolous appeal is one that cannot possibly succeed.

Result

[9] Appeal dismissed under section 35(2) of the Court of Appeal Act 1949.

The 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