Nacewa v State [2021] FJCA 250; AAU0084.2019 (20 December 2021)

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

CRIMINAL APPEAL NO.AAU 0084 of 2019

[In the High Court at Lautoka Case No. HAC 61 of 2015]

BETWEEN:
APOROSA NACEWA

Appellant

AND:
STATE

Respondent

Coram: Prematilaka, ARJA

Counsel: Ms. S. Ratu for the Appellant

: Ms. E.A. Rice for the Respondent

Date of Hearing: 17 December 2021

Date of Ruling: 20 December 2021

RULING

[1] The appellant had been indicted in the High Court at Lautoka on one representative count of rape contrary to section 207 (1) and (2) (a) of the Crimes Act, 2009 committed between the 01 January 2014 and 31 December 2014 at Nadi in the Western Division.

[2] The information read as follows.

‘Statement of Offence

RAPE: Contrary to Section 207 [1] and [2] [a] of the Crimes Decree 44 of 2009.

Particulars of Offence

APOROSA NACEWA, between the 1^st day of January 2014 and 31^st day of December 2014 at Nadi in the Western Division, penetrated the vagina of KB with his penis without the consent of the said KB.

[3] At the end of the summing-up, the majority of assessors had opined that the appellant was guilty of the charge. The learned trial judge had agreed with the assessors’ opinion, convicted the appellant and sentenced him on 13 December 2017 to a sentence of 11 years and 10 months of imprisonment (after the remand period was deducted) with non-parole period of 09 years.

[4] The appellant had appealed against conviction and sentence in person belatedly (05 July 2019). The Legal Aid Commission had then filed an application for enlargement of time, an affidavit and written submissions on 12 March 2021. The state had tendered its written submissions on 27 October 2021.

[5] 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, 0013 of 2009: 24 April 2013 [2013] FJSC 4 and Kumar v State; Sinu v State CAV0001 of 2009: 21 August 2012 [2012] FJSC 17. Thus, the factors to be considered in the matter of enlargement of time are (i) the reason for the failure to file within time (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?

[6] Generally, where the delay is minimal or there is a compelling explanation for a delay, it may be appropriate to subject the prospects in the appeal to rather less scrutiny than would be appropriate in cases of inordinate delay or delay that has not been entirely satisfactorily explained [vide Lim Hong Kheng v Public Prosecutor [2006] SGHC 100)].

[7] The delay of the appeal (about 01 year, 05 months and 23 days) is very substantial. The appellant had stated in his affidavit that he had given his appeal in time to prison authorities to have it lodged in the Court of Appeal Registry but receiving no communication from the Registry for a considerable time, he got another set of appeal papers submitted. However, he had pleaded his lack of knowledge, financial support and legal advice as reasons for the delay in his appeal papers filed in person. Thus, his explanations are contradictory and this court rejects them completely. Nevertheless, I would now see whether there is a real prospect of success for the belated grounds of appeal against conviction and sentence in terms of merits [vide Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019]. The respondent has not averred any prejudice that would be caused by an enlargement of time.

[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; House v The King [1936] HCA 40; (1936) 55 CLR 499, Kim Nam Bae v The State Criminal Appeal No.AAU0015 and Chirk King Yam v The State Criminal Appeal No.AAU0095 of 2011). The test for leave to appeal is not whether the sentence is wrong in law but whether the grounds of appeal against sentence are arguable points under the four principles of Kim Nam Bae's case. For a ground of appeal timely preferred against sentence to be considered arguable there must be a reasonable prospect of its success in appeal. The aforesaid guidelines are as follows.

(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] The grounds of appeal urged on behalf of the appellant against conviction and sentence are as follows.

Conviction

Ground 1 – Analysis of evidence/Totality of evidence

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.

Ground 2 - Inconsistencies

THAT the Learned Trial Judge erred in convicting the appellant without adequately and judiciously addressing the inconsistencies in the State’s case thus failing to afford the appellant the right to a fair trial.

Sentence

Ground 1

THAT the Learned Trial Judge erred in principle by accounting for aggravating factor that was extraneous in nature to enhance the sentence.

[10] The trial judge had summarized the prosecution evidence in the sentence order as follows.

3. The victim, KB, 17 years old, was living with her grandparents in Nawaka. She was attending Nadi Special School because she was mentally and physically impaired. You are related to her as her uncle. In 2014, you went to victim’s house when she was alone and asked for the dari or grog bowl.
   
4. When victim was trying to get the bowl from underneath the bed, you closed the house, then undressed her and put your penis into her vagina without her consent.
   
5. In the same year, victim visited your sisters who were her good friends. When victim went inside the house to drink water, you pulled her hand and inserted your penis into her vagina without her consent.
   
6. Again in the same year, the victim was attending a funeral in Nausori Highlands. When victim came to see your sisters, you pulled her and took her to your room and inserted your penis into her vagina without her consent.
   

[11] The trial judge’s summary of evidence for the prosecution and defense given in the judgment is as follows.

4. There is no dispute as to the identity of the Accused. It is agreed that Accused is Complainant’s uncle.
   
5. Prosecution called 5 witnesses. Prosecution’s case was substantially based on the evidence of the Complainant. Complainant’s mother and grandmother were called to support the version of the Complainant as to her consistency and credibility.
   
6. Complainant said that Accused penetrated her on three occasions. She could not give exacts dates the incidents had happened. However, she related those incidents to specific occurrences in 2014. I am satisfied that the Accused had penetrated the Complainant on three occasions in the year 2014 without her consent.
   
7. Bearing in mind that Prosecution has to prove the charge beyond reasonable doubt, I considered the version of the Prosecution and that of the Defence carefully.
   
8. Prosecution adduced evidence from Complainant’s teacher, mother and grandmother to show that Complainant is not a normal person in that she is mentally and physically impaired. I had the opportunity to observe her conduct in Court. I am satisfied that Complainant is not a normal person as far as her mental capacity is concerned. It appeared that she lacks mental capacity to give consent to a sexual intercourse.
   
9. Defence argues that Complainant did not complain about any of those alleged incidents to her friends, grandmother or mother immediately after the incidents. According to Complainant’s mother, Complainant had relayed all three incidents somewhere in February, 2015. Police investigator confirmed that relevant Complaint to police was lodged on 7^th February 2015.
   
10. Complainant gave acceptable explanations for the delay. She said that she was scared of her mother, grandfather, grandmother, and also of the Accused. Her fear was proved to be well founded when her grandmother said that, when she learnt about those incidents, she actually beat Complainant with a stick for allowing the Accused to come inside the house.
    
    11. There is no evidence that Complainant had screamed or fought with the Accused during alleged invasions. Given Complainant’s mental and physical capacity, she could not be expected to react the way a normal person would react in such a situation. Courts can’t predict how even an average person subjected to unwelcome demand for sexual intercourse would react in such a situation. I am satisfied that the complaint she ultimately made to police was genuine.
        
    12. Accused is Complainant’s uncle. There is no reason or motive on the part of the Complainant, her mother or grandmother to make up an allegation against the Accused.
        
    13. Evidence adduced for defence could not damage the credibility of the version of the Prosecution. Margaret, the witness called by Defence is none other than a sister of the Accused. She is no doubt an interested witness as far as the Defence case is concerned. Margaret said that she does not want to see his brother going to jail. She also said that she ceased to be a friend of Complainant after this allegation was made against her brother.
        
    14. I am satisfied that Margaret did not tell the truth to this Court regarding alleged rape incidents. Margaret however confirmed the version of the Prosecution that Complainant, who was her close friend, had visited her house on the day of the 2^nd incident and that she had gone inside the house to drink water when Accused was also present in the house. She also confirmed that Complainant was attending the funeral in Nausori Highlands during the 3^rd alleged incident.’
        

[12] The appellant had remained silent but called his sister Margaret (DW1) to give evidence at the trial.

01^st ground of appeal

[13] The gist of the 01^st ground of appeal is whether the verdict of guilty could be supported by having regard to the evidence.

[14] The test for the Court of Appeal in considering the question whether the verdict is unreasonable or cannot be supported having regard to the evidence is whether upon the whole of the evidence it was open to the assessors and the trial judge to be satisfied of guilt beyond reasonable doubt, which is to say whether the they must as distinct from might, have entertained a reasonable doubt about the appellant's guilt. "Must have had a doubt" is another way of saying that it was "not reasonably open" to them to be satisfied beyond reasonable doubt of the commission of the offence [see Kumar v State AAU 102 of 2015 (29 April 2021), Naduva v State AAU 0125 of 2015 (27 May 2021), Koli v State [2021] FJCA 97; AAU116.2015 (27 May 2021), Balak v State [2021]; AAU 132.2015 (03 June 2021), Pell v The Queen [2020] HCA 12], Libke v R [2007] HCA 30; (2007) 230 CLR 559, M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493)].

[15] The appellant’s argument appears to be the delay of one week in reporting the matter to the police by the complainant’s mother. Paragraph 70 cited by the appellant in fact demonstrates that the delay is partly due to the fact that upon hearing the allegation the mother Jokaveti had first gone to inform the appellant’s father but the appellant’s family had not done anything about it. Then, Jokaveti had gone to the police.

[16] The appellant also seems to cast doubts arising from the absence of a medical report despite the complainant having been escorted to Nadi Hospital for a medical checkup. This is a trial issue that should have been canvassed at the lower court. In any event, there was no legal obligation on the part of the prosecution to lead medical evidence. This was a case of three acts of rape being committed on three occasions in 2014 and medical evidence would not have been of much significance any way.

[17] Therefore, reading the summing-up and the judgment I cannot say that it was not open to the assessors and the trial judge to be satisfied of guilt beyond reasonable doubt; or that they must as distinct from might, have entertained a reasonable doubt about the appellant's guilt or that it was "not reasonably open" to them to be satisfied beyond reasonable doubt of the commission of the offence.

[18] There is no real prospect of success in the first ground of appeal.

02^nd ground of appeal

[19] The appellant argues that the trial judge had not adequately addressed the inconsistencies in the state’s case in that the complainant had said in evidence that she had told the grandmother of the incidents whereas she had told the police that she did not tell the grandmother. Secondly, the appellant points out that though the complainant had said that she was scared of the appellant she still visited her friends at his house. This, of course, is not an inconsistency but the appellant seems to argue that this evidence is improbable. Thirdly, the appellant contends that the complainant’s understanding of the oath was not questioned by the judge though she was a mentally impaired person. The appellant also refers to blood stains as referred to at paragraph 58 of the summing-up.

[20] Although the complainant was a slow learner attending a school dedicated to such children, she by no means was incapable of being a competent witness. The trial judge had not held a competence inquiry as such an inquiry was obviously deemed not required and the defense had also not challenged her capacity to give evidence. She had not given evidence under oath and there was no question of her not understanding the oath. Even the Supreme Court in Kumar v State CAV 0024 of 2016 (27 October 2016) [2016] FJSC 44 refused to elevate the rule of best practice of telling the witness that she must tell the truth in the absence of an oath to a rule of law.

[21] In any event, are the alleged inconsistences or improbabilities in her evidence pointed out by the appellant so material as to affect the credibility of the complainant. The test for evaluation of any alleged improbabilities, omissions, contradictions and inconsistences is whether they go to the root of the prosecution case as to discredit the complainant [see Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] AIR 753, 1983 SCR (3) 280, Nadim v State [2015] FJCA 130; AAU0080.2011 (2 October 2015) and Turogo v State [2016] FJCA 117; AAU.0008.2013 (30 September 2016)].

[22] Neither the majority of assessors nor the trial judge had considered the alleged inconsistences or improbabilities in evidence to be going to the root and affecting the very foundation of the prosecution case. I do not see anything or reason to conclude otherwise.

[23] There is no real prospect of success in the second ground of appeal.

Ground 01 – sentence

[24] The appellant’s grievance is that the trial judge had used similar factors twice to enhance the sentence. The two factors mentioned are the appellant’s awareness that the complainant was mentally impaired and the fact of exploitation of her vulnerability by the appellant.

[25] I do not think that these are similar factors. First of them is the complainant’s status and second one is the opportunistic use of her vulnerability in general by the appellant.

[26] It is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered (vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range (Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015). However, not every sentence within the range would be necessarily an appropriate sentence that fits the crime.

[27] 12 years of imprisonment lies well within the sentencing tariff of Raj v State [2014] FJSC 12; CAV0003.2014 (20 August 2014)] and sits at the lower end.

[28] There is no real prospect of success in this ground of appeal.

Orders

1. Enlargement of time to appeal against conviction is refused.
2. Enlargement of time to appeal against sentence is refused.
   

Hon. Mr. Justice C. Prematilaka

ACTING RESIDENT JUSTICE OF APPEAL