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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 102 of 2019
[High Court of Labasa in Criminal Case No. HAC 38 of 2018]
BETWEEN:
RAJESH PRASAD
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, JA
Counsel: Ms. S. Prakash for the Appellant
Ms. E. Rice for the Respondent
Date of Hearing: 06 July 2020
Date of Ruling : 07 July 2020
RULING
[1] The appellant had been charged in the High Court of Labasa for having committed an offence of rape contrary to section 207(1) and (2)(a) of the Crimes Act No.44 of 2009 by penile penetration of the vagina of the victim who was 11 years old at the time the offence was committed.
[2] The information read as follows
‘Statement of Offence
RAPE: Contrary to Section 207 (1) & (2) (a) of the Crimes Act of 2009.
Particulars of Offence
Rajesh Prasad on the 30th day of Decem2017 at Labasa basa in the ern Division, penetrated thed the vagina of SW, a child below ge of 13 f 13 years, with his penis.
[3] After frial, the assessors had expressed a unanimous opinion of noof not guilty on the count of rape on 01 May 2019 and a lesser charge of s assault. The learned High High Court judge in the judgment dated 03 May 2019 had agreed with the assessors and acquitted the appellant of the charge of rape but convicted him on sexual assault and sentenced him on 06 May 2019 to imprisonment of 04 years and 10 months with a non-parole period of 04 years.
[4] The appellant in person had filed a timely appeal only against the sentence 24 May 2019 and the registry had received another petition of appeal with more grounds against sentence on 29 July 2019. The Legal Aid Commission had filed an application for enlargement of time to appeal out of time against conviction on 09 December 2019 and tendered written submissions on 27 May 2020. The delay is about 06 months. An application to abandon the appeal against sentence in Form 3 was tendered to court at the hearing on 06 July 2020. The State had tendered its written submissions on 03 July 2020.
[5] The brief facts of the case are as follows. The prosecution had called three witnesses, the complainant, her mother Manjula Wati (PW2) and her grandmother Sam Raji (PW3). However, the prosecution case was substantially based on the evidence of the complainant. Defense had called the appellant and four other witnesses.
[6] The complainant had testified that on 26th December 2017, during December holidays, her mother sent her to her maternal aunt’s place (the mother’s sister - DW2) at Korotari because her mother had no option but to look after the victim’s sister who was hospitalized at Labasa Hospital. However, her mother appears to have said in evidence that the victim was sent to DW2’s place on 29th or 30th December and stayed there for 03 days. According to the victim, she had travelled to Korotari by bus by herself when she was made to sit in the bus by her mother at the bus stand and upon reaching Korotari, DW2 had received her from the bus and, upon her arrival, she had seen the aunt calling her mother to confirm her arrival at Korotari as confirmed by PW2. The victim had further stated that she spent three days at her aunt’s place before returning home.
[7] On 30th December, 2017, whilst the complainant was still at her aunt’s place, she was sleeping with her aunt and uncle. Her aunt was sleeping next to her and her uncle was next to her aunt in the same bed. It was a Saturdd early in the morning at a at around 5-6 a.m., the aunt had gone to the market to sell vegetables. When her aunt went to the market, uncle (the appellant) had done something bad to her. Uncle had done R.A.P.E. The victim had learned about rape at her healthy living class in Year 7 and according to her RAPE was sec or sex.
[8] When asked to clarify, the victim had said that her uncle touched her breast and took out his hand from the breast and then put her pants down. Then, he took out his ‘wee’ and put his ‘wee’ on her wee and she had described ‘wee’ as the place boys ‘wee’ from. She said she was feeling bad and felt the itch. The appellant had put the blanket down and wiped her ‘wee’. When a diagram of body parts of a man was shown to the victim, and asked to point out where the ‘wee’ is, she had pointed out the penis. When she was shown a diagram of female body parts, and asked to point out the wee, she had pointed out the vagina. She said that after doing the bad thing, uncle told her not to tell aunty what he did to her. When the aunt returned, she had told her what the uncle had done to her but her complaint had been neglected. Her aunt, DW2 had denied having received any compliant. When she returned home, the victim had told the grandmother that uncle did a ‘bad thing’ to her without any description of the ‘bad thing’ but her complaint had not been taken seriously. However, according the grandmother (PW3) when the victim complained to her for the second time, she had heard more details of the incident. Yet, it appears from the evidence of PW3 that the details as to how the incident happened given by the victim on the second occasion had been somewhat different to the victim’s own version of the incident.
[9] The position taken up by the appellant, his wife and son had been that the victim never came or stayed at their place during
the period in question as stated by the victim, her mother and grandmother. It appears that a suggestion had been made to the victim
that she was not at the appellant’s place from 27th December 2017 to 02nd January 2018 which she had denied. It had been part
of the defense case that the appellant and his wife left home to go to Labasa Saturday market carrying vegetables at about 6.00 a.m.
and returned around 3.15 p.m. on 30 December. However, the appellant had admitted that he did not take up the position that he accompanied
his wife to the market on the day in question at the stage the investigation was in progress. His wife also had admitted that she
had not informed the appellant’s lawyer that her husband came with her to the market on the day in question. The appellant
had not filed an alibi notice either before the trial. It is not clear whether the appellant had taken up the position that the victim
never came to and stayed at his house during the relevant period prior to the trial or he had come out of it for the first time at
the trial. It is apparent, however, that he or his wife had not attributed any motive for the victim to have made a serious allegation
against the appellant with whom the victim claims to have stayed just for 03 days. Nor had it been suggested that it was a fabrication
or a mere fiction by a child.
[10] DW4 had not seen a little girl at the appellant’s house on 31 December while celebrating the New Year. According to DW5
(brother of PW2 - against whom the victim had made a complaint of sexual abuse and was facing criminal proceedings), the victim and
her sister Geeta had been with him at his house on 30 December and they had not gone out. Both the victim and her mother had also
admitted in their evidence that mother, the victim and Geeta had celebrated the New Year at DW5’s residence.
[11] Therefore, there is lack of clarity or some sort of uncertainty as far as the summing-up and the judgment are concerned as to
when the victim reached and left the appellant’s house. If one accepts PW2’s evidence the victim had been back at DW5’s
place by the dawn of New Year. However, her evidence that the victim had initially left home on 29th or 30th December to go to the
appellant’s place and she was there for 03 days cannot be reconciled with the victim having come back to DW5’s place
by 30th or 31st December. Three day stay at the appellant’s place by the victim including 30 December is also not possible
if she had reached the appellant’s home on 26th December as claimed by the victim.
[12] Presently, guidance for the determination of an application for extension of time within which an application for leave to appeal
may be filed, is given in the decisions in Rasaku v State&CAV0009, 001, 0013 of 2009: 24 April 2013 [2013C 4, Kumar v State; Sinu
v State CAV0001 of 2009: 21 August 2012 [201>[2012] FJSC 17.
‘[4] Appellate courts examine five factors by way of a principled approach to such applications. Those factors are: (i) The reason for the failu file within time. [14] Rasaku threme Court further heer held ‘These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application
for enlargement of time. Ultimately, it is for the court to uphold its own rules, while always endeavouring to avoid or redress any
grave injustice that might result from the strict application of the rules of court.’ [15] Under the third and fourth factors in Kumar, test for enlargement of time now is ‘real prospect of success’. In
Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019) the Court of Appeal said ‘[23] In my view, therefore, the thld for enlargemengement of time should logically beb>higher than than that of leave to appeal and in order tain enlargemergement or extension of time the appellant matisfy tsfy this court his appeal not only has ‘merits’ and would prod probably succeed but also has a
‘real prospect of success’<160;(see R v Miller&#/i>[2002] QCA 56 (1 March 2002) on any ofgroe grounds of appeal......’ [16] I would rather consider the third and fourth factors in Kumar first before looking at the other factors which willonsidered, if necessary, iny, in the end. Grounds of appeal ‘The learned trial judge did not provide cogent reasons when overturning the unanimous opinions of the assessors that the appellant
is of guilty for the charge of sexual’ [17] I said in Lilo v State [2020] FJCA 51; AAU141.2016 (13 May 2020) and Valevesi v State [2020] FJCA 88; AAU039.2016 (22 June 2020) that: ‘[29] First, the case law makes it clear that the judge must pay careful attention to the opinion of the assessors and must have "cogent
reasons" for differing from their opinion. The reasons must be founded on the weight of the evidence and must reflect the judge’s views as to the credibility of witnesses: & ‘[34] In order to give a judgmentaining cogent reasons for for disagreeing with the assessors, the judge must therefore do
more than state his or her conclusions. At the least, in a case where the accused have given evidence, the reasons must explain why the judge has rejected their evidence
on the critical factual issues. The explanation must record findings on the critical factual issues and analyse the evidence supporting those findings and justifying
rejection of the accused’s account of the relevant events. As the Court of Appeal observed in the present case, the analysis need not be elaborate. Indeed, depending on the nature of the case, it may be short. But the reasons must disclose the key elements in the evidence that
led the judge to conclude that the prosecution had established beyond reasonable doubt all the elements of the offence. [19] I find from the judgment that the learned trial judge had analyzed the prosecution evidence in paragraphs 15–24 including
its weight and credibility. The learned judge had analyzed and concluded in paragraphs 30-32 that there was no concrete evidence
of penetration and therefore agreed with the assessors and acquitted the appellant of the rape count in the information. However,
he had accepted the prosecution evidence and been satisfied that the appellant had touched the victim’s breast and her vagina
with his penis and therefore, found him guilty of sexual assault. “...In Fiji, the assessors are not the sole judge of facts. The judge is the sole judge of fact in respect of guilt, and the
assessors are there only, to offer their opinions, based on their views of the facts...” [24] Noa Maya v. The State [2015] FJSC 30; CAV 009 of 2015 (23 October 2015] and Rokopetaate [2016] FJSC 33; CAV0009, 0016, 0018, 0019.2016 (26 August 2016) the Supreme Court reitera/p> “....;.....in Fiji...the opinion of the equivaluivalent of the jurors – the assessors – is not decisive. In Fiji,
although the judge will obviously want to take into account the considered view of the assessors, it is the judge who ultimately decides whether the defendant is guilty or not”. [28] However, while dealing with a complaint relating the alibi defence in Pauliasi Raisele v State AAU 088 of 2018 (01 May 2020) and Leone v State [2020] FJCA 85; AAU141.2019 (19 June 2020), I raised a slightly different question as to whether in addition to what Ram v State [2015] FJCA 131; AAU0087.2010 (2 October 2015) and Mateni v State [2020] FJCA 5; AAU061.2014 (27 February 2020) have prescribed as the proper direction on an alibi, the assessors should or should not be directed on the ‘intermediate position’ namely if alibi evidence is neither accepted nor rejected, the resulting position is that a reasonable doubt exists as to the truth of the prosecution
evidence, as a question of law to be looked into by the full court. The full court may also consider whether a trial judge when disagreeing
with the majority opinion of the assessors, should or should not direct himself on this ‘intermediate position’ regarding
an alibi and the impact of such failure on the conviction. However, in this instance the trial judge had completely rejected the appellant’s
alibi and therefore the ‘intermediate position’ would not have had any effect on the decision of the trial judge. [29] In Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020) the Supreme Court said ‘[23] In the course of its judgment in <Ram v The State thirt succinctly described ibed the role of the trial judge as well as the supervisory function of the appellate court
in the following words- ̶rial judge's decision to differ from, or affirm, the opiniopinion of the assessors necessarily involves an evaluation of the
ent ofty of the evidence led at thel including the athe agreed facts, and so does the decision of the Court of Appeal where thndness
of the trial judge's decision is challenged by way of appeal as in the instant case.case. I0;independently assessisessing the evidence in the case, it is nary for a trial judg judge or appellate court to be satisfied that
the ultimate verdict is rted by the evidence and is not perverse. The fThe function ofCour Court of Appeal or even this Court in evaluating the evidence and making an independent assessment thereof, is esseny of a supervisory sory nature, and an appellate coull not set aside a verdict dict of a lower court unless the verdict is unsafe and dangerous having regard to the totality
of evi in the case.”(em1;(emphasis added) [31] In my view the delay is substantial and the reason for the delay is not acceptable as no one can be presumed to be ignorant of
the law. The appellant could not have thought that he could not appeal against conviction when he had already filed a timely appeal
against sentence. The delay in not appealing against conviction is not due to any insurmountable difficulties faced by the appellant
as an incarcerated person to be exempted from the requirements of the CA Act and CA Rules on appealing against High Court decisions
(see also the observations in Fisher v State [2016] FJCA 57; AAU132 of 2014 (28 April 2016). However, I agree that no prejudice would be caused to the respondent at this stage by the enlargement
of time. [32] Accordingly, enlargement of time against conviction is allowed for the reasons stated above. Order 1. Enlargement of time against conviction is allowed. Hon. Mr. Justice C. Prematilaka JUSTICE OF APPEAL
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(ii) The length of the delay.
(iii) Whether there is a ground of merit justifying the appellate court's consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?
‘A judgment of a trial judge cannot not be considered in isolation without necessarily looking at the summing, 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).’
[18] The appellant relies on Lautabui v State [2009] FJSC 7; CAV0024.2008 (6 February 2009) where it was held
[20] The learned trial judge had also examined the defense evidence in paragraphs 25-29 and rejected the defense evidence for reasons
given therein.
[21] Therefore, The learned trial judge had dealt with the weight of the evidence and his view of credibility of the victim and the
appellant.
[22] At the same time the appellant argues that that the assessors may have opined that the appellant was not only not guilty of rape
but also not guilty of sexual assault because they had not accepted that the appellant was there at the appellant’s house on
30th December. In my view, it would not be material whether the incident of sexual abuse happened exactly on the 30th December if
it had in fact happened on any day during her stay of three days at the appellant’s house. If the assessors had doubted on
the act of penetration only they could still have found him guilty of sexual assault which had been clearly put to them by the trial
judge. Obviously, on the other hand, the trial judge had thought that the victim had been at the appellant’s house at the relevant
time as could be gathered from paragraph 15 and 16 of the judgment. The issue is who the ultimate judge of facts is in a trial in
Fiji.
[23] In this context, one must not forget the judicial pronouncements on the role played by the assessors in Fiji. In Rokonabete v
State [2006] 85; AAU0048.0048.2005S (22 March 2006) the Court of Appeal held that
[25] The appellant is also critical of paragraph 17 of the judgment where the trial judge had stated that the learned trial judge
had held the victim’s complaint to be consistent considering her complaints to the appellant’s wife and her grandmother.
The appellant’s wife had denied having received such a complaint (their position was that the appellant was not at their house)
and there is some inconsistency of the victim’s complaint to the grandmother and her own version as to how the incident happened.
Therefore, whether the learned trial judge’s conclusion in paragraph 17 is flawed and what effect it can have on the conviction
of the appellant of sexual assault is a matter the full court could examine with the help of the full appeal record. I am not in
a position to comment any further on this at this stage.
[26] The appellant also argues that the learned trial judge had unreasonably rejected the evidence of DW5, the brother of victim’s
mother that his sister, the victim and the victim’s sister were at his place on 30th December 2017 and never left home. The
trial judge in paragraph 26 seems to have rejected his evidence as DW5 was facing a charge of sexual abuse of the victim. PW2 and
the victim had both admitted having celebrated the New Year at DW5’s place. It is possible that they admit having been at DW5’s
place on 31 December whereas the incident relating to this case had happened on 30th December. Once again I cannot probe this complaint
any further without the full appeal record and it could be done only by the full court.
[27] Finally, another grievance of the appellant is that the learned trial judge had not assessed his alibi properly. The trial judge
had dealt with it in paragraph 27-29 of the judgment. He had addressed the assessors on alibi defense in paragraphs 35-37 and 77-80
of the summing-up. The appellant’s position was that the victim was never at his house not only on the day of the alleged incident
but also that she never came there. In that context his defense of alibi carries not much weight. In any event he or his wife had
not instructed their attorneys of the alibi defense in the first instance. Nor had the appellant given the legally required notice
of alibi preventing the prosecution from inquiring into the veracity of it before the trial. I see no merit in his complaint on the
so called alibi defense.
[30] I cannot say at this stage that the matters urged undersole ground of appeal have a real prospect of success in apin appeal.
However, I feel that the appellant may canvass his appeal before the full court (which will have the benefit of the complete appeal
record) against conviction on the question as to whether the learned trail judge had complied with the legal requirements in his
judgment dissenting with the assessors as set out in Lautabui v State [2009] FJSC 7; CAV0024.2008 (6 February 2009) on the one hand and whether the overall verdict of guilty of sexual assault is supported by the totality
of evidence Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020) on the other, as a mixed matter of law and fact.
URL: http://www.paclii.org/fj/cases/FJCA/2020/98.html
