Qaqaturaga v State [2021] FJCA 246; AAU0003.2019 (15 December 2021)

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

CRIMINAL APPEAL NO.AAU 0003 of 2019

[In the High Court at Suva Case No. HAC 399 of 2016]

BETWEEN:
ANANAIASA QAQATURAGA

Appellant

AND:
STATE

Respondent

Coram: Prematilaka, ARJA

Counsel: Ms. S. Ratu for the Appellant

: Mr. R. Kumar for the Respondent

Date of Hearing: 14 December 2021

Date of Ruling: 15 December 2021

RULING

[1] The appellant had been indicted in the High Court at Suva on one count of rape contrary to section 207 (1) and (2) (a) of the Crimes Act, 2009 committed on 15 October 2016 at Gau Island in the Eastern Division.

[2] The information read as follows:

‘COUNT ONE

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act No. 44 of 2009.

Particulars of Offence

ANANAIASA QAQATURAi> on t;on the 15^{th<  of October 2016, at Gau Is and, in the Eastern Division, penetrated the vagina of MS}

[3] At the ende end of the summing-up, the assessors hads had unanimously opined that the appellant wasguilty. The learned trial judge had disagreed with the asse assessors’ opinion, convicted the appellant and sentenced him on 17 December 2018 to 13s and 09 mont months of imprisonment (after the remand period was deducted) with non-parole period of 11 years and 09 monthp.

[4] The The appellant in person appealed against conviction in a timely manner (14 January 2019). The Legal Aid Commission has tendered amended grounds of appeal against conviction and written submissions on 18 March 2021. The LAC had tendered to court on 06 October 2021 separate written submissions on more grounds of appeal against conviction settled by the appellant. The state had filed its written submissions on 16 November 2021.

[5] In terms of section 21(1)(b) of the Court of Appeal Act, the appellant could appeal against conviction only with leave of court. The test in a timely appeal for leave to appeal against conviction is ‘reasonable prospect of success’ [see Caucau v State [2018] FJCA 171; AAU0029 of 2016 (04 October 2018), Navuki v State [2018] FJCA 172; AAU0038 of 2016 (04 October 2018) and State v Vakarau [2018] FJCA 173; AAU0052 of 2017 (04 October 2018), Sadrugu v The State [2019] FJCA 87; AAU 0057 of 2015 (06 June 2019) and Waqasaqa v State [2019] FJCA 144; AAU83 of 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 (15 July 2014) and Naisua v State [2013] FJSC 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds [see Nasila v State [2019] FJCA 84; AAU0004 of 2011 (06 June 2019)].

[6] The grounds of appeal urged on behalf of the appellant against conviction are as follows:

Ground 1 – by LAC

THAT the Learned Trial Judge erred in his analysis of evidence and in convicting the appellant when the evidence in totality does not support the charge of Rape.

Grounds - by the appellant

Ground 2

THAT the Learned Trial Judge erred in law when he brought out paragraph 17 and 18 facts that neither prosecution and defence brought out in evidence, but the Learned Judge relied on this from the defence closing which was not evidence.

Ground 3

THAT the Learned Trial Judge erred when he stated that the teachers were strangers and it was improbable to inform them, but it was clear in evidence that the complainant had known one of the teachers and would speak to one quite often.

Ground 4

THAT the Learned Trial Judge erred in law and fact when he failed to provide reasonable cogent reasons when he disagreed with the not guilty verdict of the assessors at the trial causes a substantial and grave miscarriage of justice.

Ground 5

THAT the Learned Trial Judge erred convicting the appellant on the substantial doubts in the prosecution case where of the benefit of the doubt ought to be given to the appellant.

Ground 6

THAT the Learned Trial Judge erred in principle when he ignored the appellant defence and took into account the relatively sided inquisition in his consideration over the denial of the defence.

[7] The trial judge had summarized the prosecution evidence in the sentencing order as follows:

‘[4] It was proved durin trhe trial that, on 15 October 2016, at Gau Island, you penetrated the vagina of MS, with your penis, without her consent.

[5]

[6] The complt clea clearly testified as to how, on that fateful day, you penetrated her vagina with your penis, without her consent. At your request the complainant had come to your house to wash your clo Your wife was said to be i be in Suva at the time and you had sent your 12 your old daughter out of the house. Thus only you and the complainant were at your house at the time. The complainant had been washing clothes in your bathroom. You had come into the bathroom, pushed the complainant against the wall, pulled away her sulu, pulled down her panty, and forcefully inserted your penis into her vagina. By your shameful act you have robbed the innocence of a 17 year old child, who is your niece.’

[8] The appellant had remained silent at the trial and not called any witnesses.

01^st ground of appeal

[9] When the trial judge disagrees with the majority of assessors he 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 and the reasons must be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial [vide Lautabui v S/u>&#/b> [2009] FJSC 7; CAV0024.2008 (6 February 2009), Ram v State<[20">[2012] FJSC 12; CAV0001.2011 (9 May 2012), Chandra 0;#1660;Stu>>&&#160 [2015] FJSC 32; CAV21.2015 (10 December 2&#160u>Baluka ve u>Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020) and Fraser v State [2021] FJCA 185; AAU128.20 May ].

[1

[10] Th0] The test for the appellate court in approaching a decision of the trial judge taken against the assessors’ opinion has been set out as follows in Kumar v State [2021] FJCA 243; AAU0009.2019 (29 October 2021).

‘[15] The question for an appellate court would be whether or not upon the whole of the evidence actationally it was opes open to the trial judge to be satisfied of guilt beyond reasonable doubt against the assessors’ opinwhether or not the trial judge must, as distinct from might, have entertained a reasonable able doubt about the accused’s guilt; whether or not it was ‘not reasonably open’ to the trial judge to be satisfied beyond reasonable doubt of the commission of the offence.’

[11] The appellant challenges the trial judge’s decision to overturn the assessors’ opinion on the basis that the complainant had in her evidence predominantly referred to the appellant ‘trying to insert’ his penis into her private part.

[12] The appellant never ran his case on the premise that he only attempted to penetrate the complainant’s vagina but his defence was a total denial. Be that as it may, the central question is whether the complainant’s evidence demonstrated even a slightest penetration.

[13] At paragraph 56 (xix) of the summing-up the trial judge had set out the complainant’s evidence in verbatim. It is clear that she had said that he was trying to insert the appellant’s penis/male private part into her vagina/female private part and then his penis went inside her/her private part and she knew it because her private part was painful. According to her, he managed to inset his penis into her vagina by forcing himself. Thus, there is unequivocal evidence of penetration given by the complainant.

[14] The appellant also argues that since both the appellant and the complainant were is a standing position (as admitted by her) the incident may have been only an attempt. The defense counsel had adverted to this position in the closing address by arguing it as an impossibility. The trial judge had considered it at paragraph 18 of the judgment and correctly held that it is not physically impossible for a male to insert his erect penis into the vagina of a female in a standing position. Attempted rape was not even advanced as a trial proposition, possibly because the appellant’s defense was a total denial.

[15] The appellant also contends that the delay in reporting the matter to the police (13 days) cast doubt on the credibility of the complainant’s allegation.

[16] The trial judge had considered this aspect at paragraph 20 of the judgment and stated that the prosecution had explained the delay satisfactorily and added that in any event the complainant had promptly informed her cousin Elenoa Bainivalu of what the appellant had done to her no sooner than she left the appellant’s house. Soon thereafter the mother had arrived and Elenoa had told her what the complainant had told her.

[17] The appellant also argues that the complainant had not told witness Elenoa Bainivalu or her mother that she was raped by the appellant in the bathroom.

[18] As per Elenoa the complainant had arrived frightened and told her that the appellant had tried to take off her clothes so that they can stay together. Later the witness had said, “For them to sleep together”. According to the mother Naina Qaranivalu the complainant had told her “..... Tu Ana had closed her in the bathroom and harassed her”/“That he held her and tried to take off her clothes”. She had thought that the appellant had closed her and touched her.

[19] Thus, it is clear that the complainant had not informed cousin Elenoa or her mother Naina that the appellant had penetrated her vagina but said enough to suggest that the appellant had engaged in an unlawful sexual conduct with her.

[20] The complainant does not appear to have been seriously challenged on this aspect of her evidence as to why she failed to inform both the above witnesses of the penetration of her vagina by the appellant which, of course, would have enabled her to explain, if possible, the reason for not describing the exact act of penetration. The prosecution too does not seems to have obtained a clarification from the complainant. In the absence of that, this argument cannot be held against the complainant.

[21] Therefore, in my mind upon the whole of the evidence acting rationallyas opes open to the trial judge to be satisfied of guilt beyond reasonable doubt against the assessors’ opinion; It cannotaid that the trial judge must, as distinct from might, have entertained a reasonable doubt oubt about the appellant’s guilt; nor can it be said that it was ‘not reasonably open’ to the trial judge to be satisfied beyond reasonable doubt of the commission of the offence.

[22] Therefore, I think that there is no reasonable prospect of success in the first ground of appeal.

02^nd ground of appeal

[23] This ground of appeal is based on paragraphs 17 and 18 of the judgment. The appellant submits that the judge had referred to facts not brought up either by the prosecution or the defense.

[24] The trial judge had specifically referred to the relevant factual matters as various propositions made by the defense counsel at the closing address. Before that, the judge had made redirections on those aspects at paragraph 74 of the summing-up to make it clear they were not suggestions made to the witnesses in cross-examination but advanced only at the closing address of the defense counsel.

[25] There is no reasonable prospect of success in this ground of appeal.

03^rd ground of appeal

[26] The appellant finds fault with the trial judge’s assertion at paragraph 19 of the judgment that the teachers were strangers and it was improbable to expect the complainant to inform them, as she had said in her evidence that at least one of them was known to her and she would speak to her ‘quite often’.

[27] However, the evidence as summarized by the trial judge at paragraph 56 (xxiv), (xxv) and (xxvi) shows otherwise. The complainant had not stated that she would speak ‘quite often’ to one of the female teachers drinking grog. She had only seen one of them before and the other lady had come and asked her earlier whether she could use the toilet. She obviously had had only a fleeting acquaintance with them. Why the complainant did not complain to the teachers was that she ran straight to her cousin’s house after the incident. She seems to have placed a lot of trust in her cousin. In any event the two female teachers were drinking grog at the veranda of the appellant’s shop. The complainant had obviously preferred to disclose her ordeal to her own cousin than to those teachers.

[28] I do not see anything objectionable in the trial judge’s conclusion. There is no reasonable prospect of success in this ground of appeal.

04^th ground of appeal

[29] The appellant argues that the trial judge had not given cogent reasons in the judgment to disagree with the assessors.

[30] Alleged lack of cogent reasons alone would not succeed as a ground of appeal since the appellate court would test the trial judge’s verdict looking at the totality of evidence as already discussed under the first ground of appeal (see Fraser v State (supra). I have already held that it was open to the trial judge to have convicted the appellant on the totality of evidence and in the process the judge had indeed given cogent reasons founded on the weight of the evidence reflecting his views as to the credibility of witnesses for differing from the opinion of the assessors and the reasons thus given, in my view, are capable of withstanding critical examination in the light of the whole of the evidence presented at the trial.

[31] There is no reasonable prospect of success in this ground of appeal.

05^th ground of appeal

[32] The appellant submits that there are substantial doubts in the prosecution case and the benefit of them should have been given to him.

[33] I do not see such substantial doubts in the case against the appellant that could vitiate the conviction.

[34] There is no reasonable prospect of success in this ground of appeal.

06^th ground of appeal

[35] The appellant complains that the trial judge had ignored his defense.

[36] I do not think that there is any merit in this assertion. The trial judge had canvassed the appellant’s defense in the summing-up and adverted to in the judgment at paragraph 15 and stated that in his considered opinion the complainant’s evidence can be accepted as truthful, credible and reliable and there was absolutely no reason for her to make up this story against the appellant who is her maternal uncle.

[37] There is no reasonable prospect of success in this ground of appeal.

[38] 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 and it is the judge who ultimately decides whether the accused is guilty or not [vide Rokonabete
St;v [2006] FJCA 85; AAU0048.2005S (22 March 2006), a MayThe S/u> [2015] FJSC 30; CAV 009 15 (23 October 2015] and &#/b> [2016] FJSC 33; CAV0009, 0016, 0018, 0019.2016 (26 August 2016)].

Order

Leave to appeal against conviction is refused.

Hon. Mr. Justice C. Prematilaka

ACTING RESIDENT JUSTICE OF APPEAL