Vesukula v State [2018] FJCA 138; AAU076.2014 (30 August 2018)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM TE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU 076 OF 2014

(Suva High Court HAC 348 of 2011)

BETWEEN : MATAIASI VESUKULA

Appellant

AND : THE STATE

Respondent

Coram : Chandra, JA
Temo, JA
Perera, JA

Counsels : Mr. Fesaitu, M. for Appellant
Mr. Prasad, Y. for Respondent

Date of Hearing : 4 July, 2018
Date of Judgment : 30 August, 2018

J U D G M E N T

Chandra, JA

[1] I have read the draft judgment of Temo JA and I agree with the reasoning and the orders proposed therein.

Temo, JA

[2] On 28 January 2014, the first day of the trial proper, the appellant (accused) waived his right to counsel, and said he would represent himself. In front of the three assessors, the following information was put to him

Statement of Offence

RAPE: Contrary to Section 207(1) and (2)(c) and (3) of the Crimes Act 2009.

Particulars of Offence

MATAIASI VESUKULA on the 18^th day of October 2011, at Nakorolevu Village, in the Western Division, penetrated the mouth of A.M, a child under the age of 13 years, with his penis.

[3] The information was read and explained to him in his preferred language, that is, ï-taukei”, and he said, he understood the same. He pleaded not guilty to the information. In other words, he denied the allegation against him

[4] The prosecution opened his case. He then called the child complainant (PW1) as his first witness. The case continued on 29 January 2014. Four witnesses gave evidence for the prosecution, that is, PW2, PW3, PW4 and PW5 – all police officers. The prosecution then closed it’s case. The court found a prima facie case against the appellant (accused), and called upon him to make his defence. He choose to give sworn evidence on his own behalf (DW1), and called three witnesses, that is, DW2, DW3 and DW4 – all civilians. On 30 January 2014, the defence presented their case.

[5] On 31 January 2014, the parties made their closing submissions, in the morning. The court delivered its summing up at midday. The assessors deliberated for about an hour and returned with an unanimous guilty opinion. The court, in its judgment, on the same day, accepted the assessors’ unanimous guilty opinion, and found the appellant (accused) guilty as charged. On 28 February 2014, the court sentenced the appellant (accused) to 10 years 4 months imprisonment, with a non-parole period of 7 years imprisonment, effective forthwith.

[6] The appellant was not happy with his conviction. He filed his petition of appeal on 16 June 2014. He provided four grounds of appeal against conviction. However, on 15 March 2016, he amended the above grounds to only one ground, and that was:

Ground one – The Learned Trial Judge erred in law and in fact when he failed to direct and guide the assessors on how to approach the evidence contained in the caution interview and the weight to be attached to the disputed confession.

[7] On his 15 July 2016 ruling on the appellant’s application for leave to appeal against conviction, His Lordship Justice of Appeal Mr. Daniel Goundar, said as follows in paragraph 3 of his ruling:

At trial, the appellant was unrepresented. He challenged the admissibility of his confession to police on the ground that he was assaulted during the caution interview. The trial judge held a voir dire and ruled the confession admissible. The appellant continued to dispute his confession in the trial proper. In his summing up, apart from summarising the evidence of the police officers who recorded the appellant’s caution interview and charge statement, the trial judge gave no directions on how the assessors were to consider the disputed confession. The assessors were not directed that they can rely on the confession as proof of guilt only if they were satisfied that the confession was true. (Burns v Queen [1995] 132 CLR 258, 261). For these reasons, I am satisfied that there is a ground of appeal that will probably succeed.

[8] I will now deal with the sole Ground of Appeal on Conviction.

Ground 1 – The Learned Trial Judge erred in law and in fact when he failed to direct and guide the assessors on how to approach the evidence contained in the caution interview and the weight to be attached to the disputed confession.

[9] I have carefully read the court record, the judge’s notes, the summing up, the judgment and the sentence in an attempt to answer the appellant’s complaint as noted in Ground No. 1 above. Justice of Appeal Mr. Daniel Goundar’s observation on 15 July 2016 in his ruling was, in my view, justified and correct. In his summing up, the learned trial judge did not direct and guide the assessors on how to approach the evidence contained in the caution interview and the weight to be attached to such disputed confession. The accused’s caution interview statements, was tendered into evidence as Prosecution Exhibit No. 1 by Detective Corporal 1855 Arvin Singh (PW2) of Nausori Police Station. From questions and answers 27 to 33 of his caution interview statement, the appellant allegedly admitted the offence. The learned trial judge only referred to the appellant’s caution interview statements in paragraph 5(ii) and (iii) of his summing up. The learned trial judge did not direct the assessors on how to approach and the weight to be attached to such disputed confession in the appellant’s caution interview statement. I uphold the appellant’s appeal on ground 1 named above. However, is that fatal to the respondent’s case.

[10] In their written submission, the respondent had urged the court to look at the totality of the evidence presented at the trial. They had submitted that the court consider the child complainant’s (PW1) evidence given in court. On page 96 of the court record, PW1’s evidence were recorded as follows.

My name is A.M. I am 8 years old. My mother’s name is T. father is B. I’m from Namara, Tailevu. I’m in class 2. I know why I’m in court today because of uncle ‘Ju’. Junior Vesikula. I was alone at home with my grandmother. Uncle Ju came home. He called me to come and eat rice. He took the lead to his house then he told me to suck his penis. He then put his penis to my mouth. My mother was in Nakasi at that time. Father was working in Suva. I can remember uncle Ju. I can recognize him if I see him again.

Prosecution : May the screen be temporarily put down?

Court : Yes

Prosecution : Witness points to the accused in the dock.

Court : Witness points to the accused in the dock

Witness : This thing really happened. Nobody told

me to tell this.

Cross Examination:

Question : I only called you to come and eat rice?

Answer : Yes. Then you made me sucking your

penis.

Accused : that is all.

[11] The learned trial judge, when analysing the case in his summing up, said the following, in paragraph 7 (i), (ii) and (v):

As you are fully conscious, this case is totally depended on what version or whose narration you are going to believe, the complainant’s or the accused’s. The complainant said that the accused put his penis into her mouth. I directed you earlier that, penetration of the penis to a mouth does amount to “rape”. Therefore, if you have fully satisfied that the complainant is telling the truth, you must find the accused ‘guilty’ to the charge of ‘rape’.

The accused said that he did not commit any sexual act to the complainant, but called her to his house only to give her some “rice”. If you feel that it is the truth or there could be some truth in it, that means you are in doubt of what the complainant said in court. The benefit of such a doubt should be resulted with a finding of ‘not guilty’.

I remind you once again that the accused need not to prove anything to show his innocence. The fact you do not believe his version, does not necessarily mean that he is guilty of the charge. The prosecution must still prove the charge beyond reasonable doubt or to your fullest satisfaction over the guilt of the accused. If you have any reasonable doubt on the case of prosecution, you have to find the accused “NOT GUILTY”.

[12] In my view, although the learned trial judge erred is not directing the assessors on how to approach and what weight to attach to the appellant’s alleged confession in his police caution interview statement, there was really no miscarriage of justice. The child complainant’s verbal evidence alone, was enough to ground a conviction against the appellant. In my view, the assessors accept the same in finding the appellant guilty as charged.

[13] Pursuant to section 23 (1) of the Court of Appeal Act 1949, although I uphold the appellant’s sole ground of appeal against conviction, I dismiss the appeal on the ground that no substantial miscarriage of justice had occurred.

Perera, JA

[14] The Learned Trial Judge had erred in not directing the assessors in his summing up that they can rely on the admissions in the cautioned interview of the accused as proof of guilt only if they are satisfied that the admissions are true. However, the appellant had failed to establish that a substantial miscarriage has occurred in this case that would warrant the conviction to be set aside in terms of section 23(1)(a) of the Court of Appeal Act. Therefore, I agree that the proviso to section 23(1) should be applied in this case and this appeal should be dismissed.

The Orders of the Court are:

1. Appeal is dismissed
2. Conviction and sentence in the High Court are affirmed.
   

________________________

Hon. Justice S. Chandra

JUSTICE OF APPEAL

_______________________

Hon. Justice S. Temo

JUSTICE OF APPEAL

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Hon. Justice V. Perera

JUSTICE OF APPEAL