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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 0164 of 2016
[In the High Court at Lautoka Case No. HAC 111 of 2012]
BETWEEN:
APISAI NATUITAGALUA
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, JA
Counsel: Mr. M. Fesaitu for the Appellant
Mr. S. Babitu for the Respondent
Date of Hearing: 09 September 2020
Date of Ruling : 14 September 2020
RULING
[1] The appellant along with another (Epeli Saukuru, the appellant in AAU 171 of 2016) had been indicted in the High Court of Lautoka on three counts of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Act, 2009 and two counts of Assault with Intent to Commit Rape, contrary to Section 209 of the Crimes Act, 2009 committed at Nadi in the Western Division on 25 August.
[2] The particulars of the offences are as follows.
‘Count 1
“Apisai Natuitagalua on the 25th of August 2012, di in the Wthe Western Division inserted his penis into the vagina of ROSALIA TINANISOKULA without her consent”
Count 2
“Epeli Sauku the 25th o160;of Aug012 at Nadi in t in the Western Division inserted his penis into the vagina of ROSALIA TINANISOKULA without her consent”
Count 3
“Apisai Natuitagalua on an occasion other than that referred to in Count 1 on the 25th of August 2012 at Nadi in ehe Western Division inserted his penis into the vagina of ROSALIA TINANISOKULA without her consent”.
Count 4
Count 5
“Epeli Saukuru on the 2>th of August 20st 2012 at in t in the Western Division assaulted ROSALIA TINANISOKULA with intent to rape her”
[3] The evidence placed against the appellant in brief as could be gathered from the sentencing order dated 17 October 2016, is as follows.
‘It was proved at the conclusion of the hearing, that you consumed alcohol with the victim, the second accused and few others at the house of one Joji on the 25th of August 2012. After the drinking party, you, the second accused and one Sitiveni went to the Nawaka River to drink more beer. On your way to Nawaka River you found the victim was standing beside the main road, waiting for her transport. You went to her and forced her to come with you. While all of you were drinking beer under a mango tree at the river bank, you pulled the victim and dragged her to nearby bush close to a cassava patch. You then forcefully removed her cloths. You punched on her chest. She got injured while she was dragged to that place. You then forcefully inserted your penis into her vagina and had sexual intercourse without her consent. Subsequently, you came back to the mango tree and continue to drink. Sitiveni went to the victim and brought her back to the mango tree. When the drinks finished, second accused and Sitiveni went back to their houses. You forcefully dragged the victim with you and took her to another place, where you forced her to lie down. You then strangled her neck, threatening her to be quite. You then forcefully inserted your penis into her vagina without her consent and had sexual intercourse. The victim was seventeen years old at the time of this alleged incident took place.’
[4] At the close of the summing-up on 03 October 2016 the assessors had returned with a divided opinion. Two assessors had found the appellant (and the other) guilty of all the counts as charged in the information. However, one assessor had found the appellant not guilty of the first count of rape and the fourth count of assault with intent to commit rape. That assessor had found the appellant guilty of the third count of rape and also found the other accused not guilty of any of the charges that he was charged with.
[5] The learned trial judge had agreed with the majority opinion and convicted the appellant (and the other) as charged in his judgment delivered on 07 October 2016 and on 17 October 2016 sentenced the appellant to 13 years and 06 months of imprisonment on the first and third counts of rape and 02 years and 06 months of imprisonment on the fourth count of assault with intent to commit rape; all sentences to run concurrently with a non-parole period of 12 years.
[6] The appellant’s timely appeal against conviction and sentence had been signed on 02 November 2016. The Legal Aid Commission had tendered two amended grounds of appeal against conviction and one ground of appeal against sentence along with written submissions on 31 December 2019. The state had tendered its written submissions on 19 June 2020.
[7] In terms of section 21(1)(b)and (c) of the Court of Appeal Act, the appellant could appeal against conviction and sentence only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.
[8] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14;
(i) Acted upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.
[9] Grounds of appeal urged on behalf of the appellant are as follows.
adequately address the issue of recent complaint.
01st ground of appeal
[10] The appellant argues that the trial judge was wrong to have directed the assessors in paragraph 169 as follows as the first person the complainant met after the incident was not the doctor but one neighbour called Roko who was not called by the prosecution to give evidence.
‘169. You have to determine whether the victim actually informed Dr. Anareta about the history as recorded under D10 of the Medical Report. If you determined that the victim has actually stated those information to Dr. Anareta, you can then consider it as evidence of recent complain.’
[11] The evidence of the complaint is found in paragraph 37 and 38 (first act of rape by the appellant), 39 (second act of rape by the other accused) and 40 and 41 (the third act of rape) of the summing-up on the two alleged incidents of rape and the other counts of assault with intent to commit rape.
‘37. Rosa found herself under a rain tree when she regained conscious. She saw the old man and other two Fijian men were drinking under the tree. It was close to a river and surrounded with a cassava patch and barbed wire. The old man slapped on her face to wake her up. He then pulled her up and dragged her to the nearby bush. He grabbed her by her vest and pulled up to stand up. She fell and the barbed wire hit her stomach. However, he continued to drag her. Other two Fijian men were just drinking at that time. He dragged her about fifty meters. She got scratches and bruises on her thighs. Those injuries caused by barbed wire when she fell. The old man then made her laid down on the grass and slapped and told her to keep quite. He pressed her thighs so hard and punched on her chest. He told her to keep still. Rosa said that she struggled and tried to push him away. She was weak and helpless.
‘41. He stopped at a place, where she could not recognised and spread a blue colour sulu under a tree, which she could not clearly recall whether it was a lemon tree or cassava patch. He then made her to lay down. She cried and tried to stop him. He then strangled her neck and told her to keep quite. He then removed all her cloths and knelt beside her. He then inserted his penis into her vagina. He did it for ten minutes. He then lay down beside her and knocked out. Rosa then managed to find her white vest and sulu. She couldn't find her other cloths. She did not know where was she exactly going. She came across a house and saw two young Fijian girls and one young Fijian boy were walking at the side of the road. She was still intoxicated. She asked help from those young people for her to stop a carrier and go. She found a carrier and came to Nadi town.’
[12] The exact evidence of how the complainant had met Roko is at paragraph 42 of the summing-up.
‘42. When she came to Nadi, she saw a boy. He was Roko who was her neighbor. She went after him and met him near the ANZ bank. Rosa told him that she was raped and asked him to take her to the hospital. She was weak, injured and bleeding from her stomach. Roko took her to hospital when she reached the hospital, she fainted. When she woke up again, she found that she was given drips on her hand. . She was admitted at the hospital for three days. This matter was reported to the police on Sunday.’
[13] The evidence of Dr. Anareta and directions on recent complaint evidence is given in paragraphs 166 -171 of the summing-up.
“the victim was drinking alcohol with her friends and sister from 11p.m. of Friday to 6 a.m. Saturday morning. Her friend dropped off her at the roundabout. Two boys put a sack on her head, punched her on face and she lost consciousness. When she awake, she was by the river bank in Nawaka under a mango tree. Four boys were nearby, three raped her while the other one tried to stop them. They raped her several time, hit her, laugh at her. She managed to climb over a fence nearby escaping there”.
[14] What is clear from the history recorded in D10 of the medical report, even if actually made by the complainant to the doctor (according to D10 it had been related by the complainant who could not remember giving it or given wrong information due to drunkenness) is that it only relates to acts of rape and not to the identity of the appellant (and the other). Thus, even if it is considered as a recent complaint it is only on acts of rape by some ‘boys’. The trial judge had not directed the assessors to consider D10 – history as recent complaint on the identity of the appellant.
[15] The identity of the appellant had been established by her evidence given in paragraph 43 of the summing-up.
‘43. The Fijian man who raped her came to her home and met her mother. He apologised for what had happened. He spoke to her mother and she saw and identified him. She in her evidence then explained the build and physical features of the old man and other person who raped her.
[16] The appellant had admitted having had consensual sexual intercourse with the complainant.
[17] Thus, the identity of the appellant had not been an issue at the trial. The only issue had been that of ‘consent’. The recent complaint evidence and its effect has been articulated in Raj v State [2014] FJSC 12; CAV0003 of 2014 (20 August 2014) and State v Likunitoga [2018] FJCA 18; AAU0019 of 2014 (08 March 2018). The appellant cites Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020) in support of his submissions that in any event what the complainant had told the doctor could not be regarded as recent complaint evidence. Justice Keith said in Singh
‘[131] ................
(1) recent complaint is only available as an exception to the rule against hearsay in criminal proceedings in sexual cases. This was not a sexual case and in any event Devi was not a complainant;
(2) a complaint in sexual cases is only recent if it is made at the first opportunity which reasonably presents itself. Devi’s report to her father was made five days after the alleged killing and, even ignoring the fact that it was not a report by a complainant in a sexual case, it could not be said to have been made at the first opportunity which reasonably presented itself and, accordingly, it was not appropriate to categorise it as a recent complaint; and
(3) in any event, even in cases of sexual offences where evidence of recent complaint is admitted, the complaint is not evidence of its truth; it goes, rather, to consistency. In the present case, the judge did not explain to the assessors that the statement by Devi to her father could not on any view be taken as establishing the truth of what Devi had told her father.
[18] Firstly, in Singh the Supreme Court was considering a case of murder and not a case of sexual abuse and to that extent the observations in paragraph 131 (2) was obiter dicta. In any event no authority had been cited in Singh or submitted to me by the appellant’s counsel, which has authoritatively held that in a case involving a sexual offence only a statement made at the first available opportunity that could be regarded as recent complaint evidence. Nevertheless, the words ‘reasonably presented’ in paragraph 131 (2) in Singh may mean that the opportunity need not necessarily be the first opportunity numerically presented to the complainant. There can be a very legitimate reason for the complainant in any given case not to divulge the sexual abuse to the first person she meets or at the first available opportunity, for example lack of confidence in the first person. Therefore, in my view the only criterion to allow or disallow or to consider or not to consider any such complaint as a ‘recent complaint’ should not be whether it is made at the first available opportunity or not. That question should be determined in the whole context and circumstances of the case.
[19] On the other hand, even if the trial judge made an error in the directions in paragraph 169 of the summing-up and in paragraph 30 of the judgment where he had stated that the history related by the victim to the doctor could be considered as evidence of recent complaint as it was the first time the victim has informed someone about the incident that she went through, the ‘recent complaint’ evidence alone was not the basis or even the foundation of the appellant’s conviction. The history had nothing to do with the identification of the appellant which was not disputed by the appellant himself. The issue of consent had been based on the complainant’s evidence believed by the majority of assessors and the trial judge. The trial judge’s impugned direction specifically had not focused on the matter of consent but a general remark.
[20] In the circumstances, the appellant has no reasonable prospect of success in this ground of appeal.
02nd ground of appeal.
[21] The appellant argues that the trial judge had failed to provide a balanced and adequate analysis of the totality of the evidence. Particular attention had been paid to paragraphs 35 and 37 of the judgment in this connection.
[22] The specific complaint is that the trial judge’s conclusion in paragraph 37 as underlined above was not fair given that the expert medical evidence was that the doctor could not confirm whether the complainant had sustained any micro injuries.
[23] In fact it is the wife of the appellant who in her evidence had stated that whenever she had sexual intercourse with her husband, she sustained vaginal injuries due to the foreign objects (marbles) inserted in his penis. The appellant had earlier given evidence that he had marbles in his penis when he had sexual intercourse with the appellant which the appellant had not been aware of or spoken to. Paragraph 73 of the summing-up sheds more light on this issue.
‘73. Dr. Anareta has not conducted any chest examination. During the vaginal examination, she had found old blood around the perineum area. According to the specific medical findings as it was record in the medical report, there were no active bleedings, no laceration, no tears were found during the vaginal examination. Perineum is the opening of the vagina to the anus. She then explained the possible causes for the old blood that she found around perineum area. There are two possible causes. The first is that due to micro injuries. They are not visible to naked eye and can be caused by force or aggressive penetration via a blunt object or forceful penetration that was not severe enough to cause visible injuries. Two kinds of test can be done to visualise these micro injuries, but they are not available in Fiji. The second reason could be that the victim was closing towards her menses. The colour of the blood was brownish red. The colour of the blood could not be able to determine whether the blood found around perineum was due to micro injuries or due to the menses as blood changes colour as time progress due to the loss of oxygen in the blood.’
[24] However, the complainant had denied that she was nearing her menses at the time of the incident. Therefore, taken the medical findings, the appellant’s evidence and the evidence of the appellant and his wife into account it was not illogical for the trial judge to have concluded that there was a greater possibility that the old blood that was found in the vagina of the victim was due to the micro injuries that the victim sustained during the alleged sexual encounter with the appellant.
[25] In addition, I have examined the summing-up which is exhaustive, detailed, objective and well-balanced in every sense and it was open to the majority of the assessors to have come to the conclusion they had arrived at on the criminal liability of the appellant.
[26] Having analyzed the Supreme Court decisions in Lautabui v State [2009] FJSC 7; CAV0024.2008 (6 February 2009), Ram v State [2012] FJSC 12; CAV0001.2011 (9 May 2012), Mohammed &v Sta> [2014] FJSC FJSC FJSC 2; CAV02.2013 (27 February 2014) Chandra v Stu> [201SC AV21.2015.2015 (10 D(10 December 2015) and Singh v State [2020] FJSC 1; CAV 002V 0027 of 2018 (27 February 2020) and the of A deci in iyum te [20b>[2014] F14] FJCA 3JCA 35; AA5; AAU0071U0071.2012 (14 March 2014), Kumar v State [2018] FJCA 136; AAU103.2016 (30 August 2018), I commented in the ruling in Waininima v State AAU0142 of 2017 (10 September 2020) as follows.
‘[17] Therefore, there still appears to be some gray areas flowing from the above judicial pronouncements as to what exactly the trial judge’s scope of duty is when he agrees as well as disagrees with the majority of assessors.
[18] What could be ascertained as common ground is that when the trial judge agrees with the majority of assessors, the law does not require the judge to spell out his reasons for agreeing with the assessors in his judgment but it is advisable for the trial judge to always follow the sound and best practice of briefly setting out evidence and reasons for his agreement with the assessors in a concise judgment as it would be of great assistance to the appellate courts to understand that the trial judge had given his mind to the fact that the verdict of court was supported by the evidence and was not perverse so that a judge’s agreement with the assessors’ opinion is not viewed as a mere rubber stamp of the latter.
[19] On the other hand when the trial judge disagrees with the majority of assessors the trial judge should embark on an independent assessment and evaluation of the evidence and must give ‘cogent reasons’ founded on the weight of the evidence reflecting the judge’s views as to the credibility of witnesses for differing from the opinion of the assessors.
[20] In my view, in both situations, a judgment of a trial judge cannot not be considered in isolation without necessarily looking at the summing-up, for in terms of section 237(5) of the Criminal Procedure Act, 2009 the summing-up and the decision of the court made in writing under section 237(3), should collectively be referred to as the judgment of court. A trial judge therefore, is not expected to repeat everything he had stated in the summing-up in his written decision (which alone is rather unhelpfully referred to as the judgment in common use) even when he disagrees with the majority of assessors as long as he had directed himself on the lines of his summing-up to the assessors, for it could reasonable be assumed that in the summing-up there is almost always some degree of assessment and evaluation of evidence by the trial judge or some assistance in that regard given to the assessors by the trial judge.
[27] Having examined the trial judge’s judgment too, I cannot see any reason to criticize it regarding the discharge of his function in agreeing with the majority of assessors.
[28] Therefore, this ground of appeal has no reasonable prospect of success.
03rd ground of appeal (sentence)
[29] The appellant complains that the non-parole period is too close to the head sentence. The gap is 1 ½ years between the head sentence and the non-parole period.
[30] The purpose of fixing a non-parole period is given in Tora v State CAV11 of 2015: 22 October 2015 [2015] FJSC 23 and Raoghe State& CAV 003 of: 19 Au19 Aug9 August 2010 referring to the legislative intention behind a court having to fix a non-parole period as follows.
"The mischief that the legislature perceived was in serious cases and in casn cases involving serial and repeat offenders the use of the remission power resulted in these offenders leaving prison at too early a date to the detriment of the public who too soon would be the victims of new offences."
[31] In Natini ve AAU102 of 2010: 3mDecember 2015 [2015] FJCA 154 the Court of Apsaid e operation of thof the non-parole period as follows:
“While leaving the discretion to decide on the non-p perien sentencing to the sentencing Judge it would be necessary to state that
[32] As it existed then (and clearly now), section 18(1) of the Sentencing and Penalties Act, 2009 mandated a non-parole period to be fixed when the sentence was more than 02 years with no discretion to the sentencing judge. The non-parole period so fixed must be at least 06 months less than the term of the sentence [see section 18(4)]. Considering all the circumstances the mandatory duty exercised by the trial judge to impose a non-parole period which is now a must in all circumstances in terms of the Corrections Service (Amendment) Act 2019 and his discretion to set it at 12 years cannot constitute any error in sentencing principles. See for a detailed discussion on a similar ground of appeal - Vakatawa v State [2020] FJCA 63; AAU0117.2018 (28 May 2020).
[33] There is no reasonable prospect of success in this ground of appeal too.
Order
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
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