Bavesi v The State [2017] FJCA 68; AAU044.2015 (19 June 2017)

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

CRIMINAL APPEAL NO: AAU 044 of 2015
[High Court Case No: HAC 200 of 2013]

BETWEEN:

TARAJIANI BAVESI
Appellant

AND:

THE STATE
Respondent

Coram: Hon. Mr Justice Daniel Goundar

Counsel: Ms M Tarai for the Appellant
Mr L J Burney for the Respondent

Date of Hearing: 14 June 2017
Date of Ruling : 19 June 2017

RULING

[1] This is a timely application for leave to appeal against conviction only. Following a trial in the High Court at Suva, the appellant was convicted of four counts of rape and sentenced to 13 years’ imprisonment with a non-parole period of 12 years. All four charges arose on 13 May 2013 and involved two young women. At the time of the offending, the appellant was a police officer. The two complainants were suspects in a case of theft of a mobile phone the appellant was investigating. In the course of his duties, the appellant went to the residence of the complainants to make inquiries about the alleged theft. He was in police uniform. The complainants accompanied him by foot towards Nakasi Police Station, cutting through the Nasinu cemetery where the alleged incidents occurred. At trial, the appellant did not dispute that he had engaged in sexual acts with the complainants at the cemetery. He said the sexual acts were consensual.

[2] The assessors’ unanimous opinion was that the appellant was not guilty of the four charges. The learned trial judge did not agree with that opinion. He found the appellant guilty of rape on all four charges in a written judgment pronounced in open court. The appeal is against that judgment of conviction. The grounds of appeal are:

(1) That the learned Trial Judge erred in law and in fact when he disagreed with the opinions of the assessors of Not Guilty for all the 4 counts of Rape without giving a cogent reason, especially when he found that the assessors verdicts were not perverse and that it was open to them to reach such conclusion on the evidence.
(2) That the learned Trial Judge erred in law and in fact, in rejecting the appellant’s credibility, when he took into account an irrelevant issue that the appellant had behaved in a manner that had fallen below the standard required of a police officer.
(3) That the learned Trial Judge had erred in law and fact when, four counts 3 and 4, he was of the view that the Appellant had forced himself on the complainant because he was in police uniform and had abused his position of authority, when he did not come out in evidence.
(4) That the learned Trial Judge erred in law and fact in allowing the hearsay evidence contained in the Medical Report to be admitted as evidence for Prosecution.

[3] Grounds one to three can be dealt with together because they concern lack of cogency in the reasons the trial judge gave to convict the appellant. It is well established that an appellate court reviews the trial judge’s reasons for disagreeing with the majority opinion of the assessors for cogency. The reasons must be carefully stated in a written judgment and reflect the trial judge’s views as to the credibility of witnesses and other considerations (Ram Bali v R [1960] 7 FLR 80, 83). They must also be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial (Setevano v State unreported Cr App No 14 of 1989; 27 May 1989, 7). In Rokp; others v State&#16e unrep Cr. App. No. 5 an 5 and 12 of 2002; 29 April 2004, the principle regarding the trial judge’s obligation to givent re for greeingeeing with the majority opinion of the asse assessors was endorsed by the Full CourtCourt at p 15:

The authorities to which we have referred make it clear that the reasons for the Judge not agreeing with the majority opinion of the assessors must be cogent and in sufficient detail to enable this court critically to examine them in the light of the whole of the evidence and reach a conclusion on whether the decision to reject the majority opinion of the assessors is justified.

[4] In the present case, the trial judge gave brief reasons for disagreeing with the unanimous not guilty opinion of the assessors. The judgment consists of ten paragraphs. In paragraph one, the trial judge sets out the assessors’ opinions and a possible explanation for those opinions. In paragraphs two to four, the trial judge sets out the law regarding the function of the assessors and the role of the judge by reference to the statutory provision and case law. In paragraph six, the trial judge remarks that the assessors’ verdict was not perverse and that it was open to them to reach such conclusion on the evidence, but immediately after making that statement, he disagrees with the assessors’ opinion based on his own assessment of the evidence and the credibility of the witnesses. Both parties agree that there is an apparent contradiction in the trial judge’s reasoning that on one hand, the unanimous not guilty opinion was open on the evidence, while on the other hand, it was not, based on the judge’s assessment of the evidence.

[5] The actual assessment of the evidence was carried out in three paragraphs – seven to nine. Paragraph 10 sets out the conclusion that the appellant was guilty of the charges. I have carefully looked at the trial judge’s reasons for convicting the appellant. The main issue in the trial was consent or lack of it. On the issue of consent or lack of it, the trial judge believed the complainants and not the appellant. The reason that the trial judge gave for not believing the appellant on the issue of consent was that it was ethically wrong for him to have sex with suspects he was investigating for an alleged crime. This reasoning is arguably flawed in law. The appellant was not charged with breach of police ethics. He was charged with rape. The appellant’s admission that he had engaged in sexual acts with the complainants may have been unethical police behaviour, but that does not mean that he did not tell the truth when he said the sexual acts were consensual. Overall, I am satisfied that it is reasonably arguable that the trial judge’s reasons may not withstand critical examination in the light of the whole of the evidence presented in the trial. I would grant leave on grounds one to three.

[6] Admissibility of the medical report involves a question of law alone. On ground four, the appellant may proceed as of right under section 21(1) (a) of the Court of Appeal Act.

[7] Result

Leave granted.

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