Masei v State [2022] FJCA 10; AAU131.2017 (3 March 2022)

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

CRIMINAL APPEAL NO. AAU 131 OF 2017
(High Court No. HAC 88 of 2013)

BETWEEN

AMINIASI MASEI

Appellant

AND

THE STATE

Respondent

Coram : Gamalath, JA
Prematilaka, JA
Bandara, JA

Counsel : Appellant in person

Mr S. Babitu and Mr T. Tuenuku for the Respondent

Date of Hearing : 25 February, 2022

Date of Judgment : 03 March, 2022

JUDGMENT

Gamalath, JA

The back ground

[1] The appellant’s numerous grounds of appeal, basically based on matters of fact alone, were not considered favorably by the learned Single Judge, who refused to grant leave on 30 October, 2020. Relying on the very same grounds the appellant is renewing his appeal, presently.

The appellant was convicted for having committed rape on MB a 15 year old boy on the 6^th of March 2013, contrary to section 207(2)(b) of the Crimes Act No. 44 2009.

Evidence in brief

[2] (a) The victim MB (name suppressed) testifying in the trial described how he was raped by the appellant in a sugarcane field situated closed to his friend’s house in Bila Settlement. At that time he was only 15 years of age and a school boy. On 6 March 2013, at around 11.00am, after playing with his school mate, when MB walked in to the nearby sugarcane field to urinate, he saw the appellant, who he knew prior to the incident, idling in the cane field. The appellant had approached MB and pulled him by his collar into the bush, where he after undressing MB, inserted his penis into his anus. MB said in evidence that the incident made him frightened. It appears from MB’s evidence that due to the post trauma of the incident MB had been experiencing disturbed sleeping patterns, which came to his mother’s attention. On being questioned MB had confided with the mother the incident with the appellant.

(b) The mother of the victim testified at the trial and recalled how she observed her son keeping up in the night and complaining about having sleeping problems and eventually related to her about the incident with the appellant.

(c) The appellant elected to testify at the trial in which he denied the accusation and stated that he did not know why MB made the allegation of rape against him.

(d) In relation to the identification, it was an agreed fact that the appellant and MB were known to each other prior to this incident.

The Summing Up

[3] The learned High Court Judge had made a detailed summing up in which he discussed the entirety of the facts with the assessors. Dealing with the evidence of the appellant, the learned High Court Judge very correctly directed the assessors on the line of defence taken up by the appellant, that he had no idea why MB was implicating him in this crime. His was, as can be seen, quite a brief defence in which he was making attempts, inferentially, to portrait that the allegation against him is a mere fabrication.

[4] In his analysis of the evidence, I find the learned trial Judge extensively discussing the various aspects of the case and taking as a whole his analysis of evidence is a balanced, objective and accurate statement of the evidence of the case.

[5] At the conclusion of the trial the assessors opined unanimously that the appellant was guilty as charged.

[6 ] In relation to the post traumatic evidence that were observed on MB by his mother, the learned Trial Judge had made a pertinent observation in the judgment;

“I am mindful of the fact that victims of sexual offences can react to the trauma in different ways. Some in distress or anger, may complain to the nearest person they see. Others, who react with shame or fear or shock or confusion, or perhaps due to cultural taboo, do not complain or go to authority for some time. It takes a while for self-confidence to reassert itself. A late complaint does not necessarily constitute a false complaint. The victim was a 15 years old boy at the time of the incident. It is obvious that this incident had brought a terrifying experience into the life of the victim. Having considered the post-incumbent behavior of the victim as explained in his evidence, it is my opinion that the delay of informing his parent of this incident has not adversely affected the credibility and reliability of the victim’s evidence.”

The verdict

[7] The assessors were unanimous in their opinion of guilty of the appellant as charged and the learned trial judge agreed with the opinion and convicted the appellant as charged.

On The Grounds of Appeal and the Ruling

[8] As stated at the beginning, there were several grounds of appeal urged by the appellant against his conviction and in my opinion the matters raised therein are purely based on factual issues and they were the same grounds on which the appellant relied on at the leave stage as well. Having delved into the grounds of appeal extensively the learned Single Judge refused leave on any of the grounds. As such the leave against conviction stands refused. The State in its submissions stressed that there is no basis upon which the renewal application could be entertained, particularly based on the well-established legal principles relating to entertaining renewal applications. Having perused the grounds carefully, I also do not find any issue which could be described as a ground that involves a pure question of law alone .

Moreover, the appellant in his submissions did not seek to make a renewal application either.

However, for the sake of fairness I shall revisit the grounds briefly.

First Ground

[9] The Appellant complains that the trial Judge had erred in making a balanced summing up, based on an objective and a balanced footing. He urges that in the summing up, learned High Court Judge devoting merely 3 paragraphs to discuss the defence case, whereas he had set apart “several paragraphs” to deal with the prosecution case. As transpired in the trial, there were three witnesses including the victim who testified for the prosecution whereas the case for the defence was a short-testimony where the appellant denied the charge against him. (see ps.298 - 209 of the Court Record)

[10] This is an ex facie frivolous ground and there is no merit to be considered in the appeal.

[11] There are several paragraphs to the second ground of appeal.

Ground 2(a)

The Appellant claims since he speaks a dialect, Navosa, which is distinct to the dialects

of other vernacular Bauan used in Fiji, when the victim in evidence stated that the

appellant ordered him to remove his pants before he was raped, as the victim could not

have understood what he said, that evidence of the victim was a lie.

The position was never put to the victim, whilst under cross-examination. The counsel for the appellant, as can be seen from the proceeding, has extensively cross-examined the victim and nothing in the line of the above ground of appeal has been raised therein.

This is a frivolous ground of appeal based on a matter of facts and as such could not succeed.

Ground 2(b)

The appellant had urged under this ground that the learned trial Judge had shifted the burden of proof to the defence when he summed up as follows; “(12) Having considered the foregoing reasons, I find the evidence given by the victim is credible, probable and reliable. Hence, I accept the evidence of the victim as truth. Accordingly, I find the evidence given by the accused and his complete denial untrue. Hence, I do not accept the evidence of the accused person. Furthermore, I find that the defence has failed to create any reasonable doubt about the case for the prosecution.”

In so far as the legal principles relating to the burden of proof is concerned, basic matters in a trial, as a matter of fact, I find the learned trial Judge had stated the legal position precisely as expected; (see paragraphs 12-14 of the Summing Up and paragraph 13 of the Judgment).

The above impugned portion of the summing-up, as I can see it, is dealing with the weight to be attached to the evidence of both the prosecution and the defence. The trial Judge, having examined the prosecution evidence was convinced that the truth lies in it, whereas the evidence of the appellant was not considered as the truth of the incident and as such he refused to act upon it.

Having dealt with as such, he had concluded that the appellant’s evidence had failed to create a reasonable doubt in the prosecution case, and as such, his inclination to act on the evidence of the prosecution, as a standalone position, had been expressed therein.
In the circumstance, I find that this ground should also devoid of any merit.

Ground 2(c)

It is the lack of expert evidence to support the prosecution case that was made the subject of criticism by the appellant. His focus is on paragraphs 7 and 8 of the judgment in which the learned trial Judge had stated as follows;

“[7] The learned counsel for the defence suggested that the lateness in complaining this matter to the parents by the victim makes it less likely that the complaint that he eventually made was true. The evidence adduced by the victim and his mother reveal that the victim had informed his mother about this incident after about four weeks of the incident. The victim in his evidence stated that the accused told him not to tell anyone. He further stated that he started to have troubles in his sleeping as this incident regularly came to his mind. He then decided to tell his mother.

[8] I am mindful of the fact that victims of sexual offences can react to the trauma in different ways. Some, in distress or anger, may complain to the nearest person they see. Others, who react with shame or fear or shock or confusion, or perhaps due to cultural taboos, do not complain or go to authority for some time. It takes a while for self-confidence to reassert itself. A late complaint does not necessarily constitute a false complaint. The victim was a 15 years old boy at the time of this alleged incident took place. It is obvious that this incident has brought a terrifying experience into the life of the victim. Having considered the post-incident behaviours of the victim as explained in his evidence, it is my opinion that the delay of informing his parent of this incident has not adversely affected the credibility and reliability of the evidence given by the victim.”

[12] In essence, the appellant is trying to drive home the fact that the victim has failed to make a complaint about the incident of rape promptly and as such the delay on his part should have been taken into account by the learned trial Judge, before he decided to believe the victim’s evidence.

[13] It is important to recall, that the victim, who had experienced a very unusual kind of sexual encounter, was showing signs of trauma that came out through his irregular sleeping patterns, to which the mother of the victim testified without any challenge.

[14] It is well known that in cases involving sexual violence, victims sometimes suffer silently all through their lives with having no recourse to any justice and in this instant case one cannot overlook the fact that the victim was a school boy in his age of 15, when he experienced the alleged incident at the hands of the appellant. As decided in the case of H.P. v. Shree Kant Shekari, (2004) 8 SCC 153, the Indian Supreme Court held that;

“In any event, delay per se is not a mitigating circumstances for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactorily explain the delay, and there is possibility of embellishment or exaggeration in the prosecution version of account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay in weighing enough to reject the plea of false implication or vulnerability of prosecution case.”

[15] In the instant appeal, I find that the counsel for the appellant had cross examined the victim extensively about the delay in making a complaint to the parents. (See p.190 to p.200 of the court record). In the evidence of the victim, he stood grounds that he became sleepless for days after the incident with the appellant. This explanation had been considered as authentic by both the learned trial Judge and the assessors. The learned trial Judge’s observations on the post trauma syndrome shown by the victim, can be understood by applying the test of commonsense, particularly in relation to a case where a school going 15 years boy had been subjected to a sexual violence, the disclosure of it would have been difficult, partly because of its social stigma involvement.

[16] The Single Judge, dealing with this issue had explicitly stated as follows;

“In law the test to be applied on the issue of the delay in making a complaint is described as the totality of circumstances test. In applying the totality of the circumstances test, what should be examined is whether (i) the complaint was made at the first suitable opportunity within a reasonable time or (ii) if not, whether there was an explanation for the delay. Prosecution must explain the delay satisfactorily. The Court is bound to apply its mind to the explanation offered by the prosecution through its witnesses, circumstances, probabilities and common course of natural events, and human conduct. Unexplained delay does not necessarily or automatically render the prosecution case doubtful. Whether the case becomes doubtful or not, depends on the facts and circumstances of the particular case. [vide State v. Serelevu [2018] FJCA 163; AAU 141.2014 (4 October 2018)].”

[17] I am in agreement with the above decision and as such this ground of appeal is also without any merits.

[18] In total, those are the grounds on which the appellant has placed reliance in assailing his conviction in the High Court. They are basically relating to factual matters and their vagueness is also a factor that is needed to be considered in dealing with them.

[19] In the circumstances, I hold that the appeal cannot succeed and as such conviction affirmed and the appeal dismissed.

Prematilaka, JA

[20] I have read the judgment of Gamalath, JA in draft and agree with reasons and conclusions thereon.

Bandara, JA

[21] I have read the draft judgment of Gamalath JA and agree with his reasoning and conclusions.

Orders of the Court

(1) The conviction affirmed.

(2) Appeal dismissed.

Hon. Justice S. Gamalath

JUSTICE OF APPEAL

Hon. Justice C. Prematilaka

JUSTICE OF APPEAL

Hon. Justice W. Bandara

JUSTICE OF APPEAL