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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 044 OF 2015
(High Court No. HAC 200 of 2013)
BETWEEN:
TARAJIANI BAVESI
Appellant
AND:
THE STATE
Respondent
Coram : Gamalath, JA
Prematilaka, JA
Bandara, JA
Counsel : Mr S. Waqainabete for the Appellant
Mr L. J. Burney for the Respondent
Date of Hearing : 11 February, 2022
Date of Judgment : 3 March, 2022
JUDGMENT
Gamalath, JA
[1] The appellant stood accused of four counts in the High Court of Suva and the details of which are as follows:
COUNT ONE
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
TARAJIANI BAVESI on the 13th day of May, 2013 at Wainibuku Cemetery, Nasinu in the Central Division, had carnal knowledge of VL without her consent.
COUNT TWO
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (c) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
TARAJIANI BAVESI on the 13th day of May, 2013 at Wainibuku Cemetery, Nasinu in the Central Division, penetrated the mouth of VL with his penis, without her consent.
COUNT THREE
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
TARAJIANI BAVESI on the 13th day of May, 2013 at Wainibuku Cemetery, Nasinu in the Central Division, had carnal knowledge of FK without her consent.
COUNT FOUR
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (c) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
TARAJIANI BAVESI on the 13th day of May, 2013 at Wainibuku Cemetery, Nasinu in the Central Division, penetrated the mouth of FK with his penis, without her consent.
The four counts are in relation to the offences committed against two females PW1 and PW2, (names suppressed) who were 21 and 19 years of age respectively, whose testimonies at the trial revealed how the appellant, who was 41 years of age, a uniformed police officer, married with two grown up children has had carnal knowledge, rape, as well as oral penetration, without their consent.
The Prosecution case
[2] As unfolded at the trial, the appellant being a police officer attached to the Special Police Unit, had been investigating a complaint made by one Wise, a cousin of PW1 and PW2 about a missing mobile phone that belonged to Wise, allegedly stolen by PW1 and PW2, who were then living with their grandmother. On the day referred to in the charges, at around 6 p.m. the appellant visited the house of PW1 and PW2 and wanted them to accompany him to the police station at Nakasi to conduct the investigation into Wise’s complaint.
[3] From the place of residence of the victims to the police station, there is a ‘short cut’ through Nasinu cemetery and the appellant had asked PW1 and PW2 to walk with him through the short cut, in the company of Wise, and two others.
[4] While in the cemetery at one particular point the appellant stayed back with PW1 and asked the others to go ahead and wait at the police station. The reason given for PW1 to stay back was that the appellant was intending to question PW1 about the missing phone. After they were alone in the cemetery the appellant had asked PW1 to sit down at an area where there was a kiosk. Having seated, the appellant started a conversation about the relationships of PW1. PW1 has replied the appellant that she did not come with him to discuss such matters. Thereafter, they left the place and walked towards another area of the cemetery, where the appellant forced PW1 to sit down on a grave. There he forcibly removed her clothes and inserted his penis into her vagina. Thereafter, the appellant had forced his penis into her mouth. PW1’s attempts to escape from his grip had not been successful. The appellant asked the victim not to report the matter to the police.
[5] After the incident PW1 ran towards the police station followed by the appellant, who asked her not to run. PW1 said she was frightened by what had happened.
[6] In the case of PW1, the defence taken up by the appellant was that PW1 consented to having sex with the appellant and the initial proposition was made by PW1 who enticed him by kissing him.
[7] Although PW1 ran straight to the police station after the incident the fright had kept her from reporting the incident to anyone. Elaborating further in the cross-examination of PW1, she stated that she complained about the incident within 5 minutes after arriving at the police station.
[8] PW2’s account on the incident corroborates the evidence of PW1 on material points relating to the attendant circumstances of the incident. According to PW2, around 6.00 in the afternoon while preparing dinner at the grandmother’s house, the appellant appeared at the house and inquired about the mobile phone that has gone missing. Thereafter, both PW1 and PW2 were told to accompany him to Nakasi Police Station, to which they could arrive at by taking a shortcut through a cemetery, where there was a kiosk at the cemetery shelter. Having arrived at that point the appellant had stayed back with PW1 to inquire something from her and the others including the witness were ordered to hurry up to the police station. Having reached the police station and while waiting for about 30 minutes PW1 came to the police station with the appellant. PW1 had a vacant look and was staring at a distance, had not conversed with any one, distanced herself by sitting away from the rest. After he came to the police station, the appellant informed PW2 and the rest who were in their company that PW1 admitted having stolen the mobile phone and wanted them to return home because the phone was at home, meaning at the grandmother’s place.
[9] PW2 said in evidence that while walking back home she was accompanied by the appellant who took the same shortcut described earlier, and while passing by the kiosk in the cemetery, the appellant directed PW2 to walk down a pathway, where at a particular place the appellant stopped and told her that the issue relating to the stolen phone could be resolved amicably. Importantly, PW2’s evidence was that the appellant had threatened to arrest both PW1 and the PW2 if they did not agree to the suggested amicable settlement.
[10] While this was being told, the appellant had pushed PW2 down on the ground and forced himself on her, and had sexual intercourse both through vagina and the mouth.
[11] Having accomplished this, PW2 was told to return to the grandmother and to return the phone.
[12] PW2 rejected the suggestion in cross examination that she consented to have sex with the appellant. The suggestion that it was PW2 who seduced the appellant to have sexual intercourse was rejected by PW2 during the course of the cross-examination. The defence raised the issue that both PW1 and PW2 did not complain against the appellant promptly and in responding PW2 stated that “At that time in my mind, I thought that if the phone would not be returned myself and V (PW1) would be arrested.” (page 299). Answering the question why she did not report the rape incident to the police while they were at the police station PW2 said “I could have but I couldn’t because I thought if I said what had happened they might come up about the case of the phone”. Further, it was her evidence that “when we came back home and I was standing with PW1 and I saw that PW1 was crying and on being inquired why she was crying she told me that the Police officer told her not to say anything to her and not to tell anybody. I then told her that the same thing happened to me, my Lord.” (see, page 300)
[13] I find that this important parts of the evidence of PW1 and Pw2 were not challenged in cross examination for its truthfulness and as such it remains unimpeached and uncontroverted.
[14] The medical evidence led by the prosecution bears a degree of significance to the final outcome of the case. Dr Maharaj testified to the fact that he examined both PW1 and PW2 at Nausori Health Center. The Doctor observed that PW1 looked as she was in a state of shock and did not talk. She answered only when she was asked about any matter and that required the Doctor to probe or “dig” into matters. In his evidence the Doctor further stated that “Yes, when I am in shock that’s what I mean.(see p.303) And having a blunt effect basically is that she was looking down and not making eye contacts with me and not responding as an abnormal person does when they come to me. Further, she was only talking when I asked her something. So I had to dig in, that’s what I mean she was looking shocked and had a blunt effect”.
[15] Describing the nature of injuries found on PW1, the Doctor stated that “I found that there was a 0.5cm laceration noted at the vaginal introitus at 6 o’clock position with minimum bleeding seen from that laceration. Second thing I have found upon examining her vagina, there was a thick white discharge inside the vagina as well.” (page 303).
[16] Doctor further testified that the injuries found on PW1 and PW2 could have been as a result of either consensual sex or non-consensual sex. However, he related his evidence to the history given by PW1, and stated “Yes, in the history she told me she was raped that means that is not by consent”. (see page 311)
[17] I find that during the cross examination of the Doctor, no questions had been asked to impeach the evidence relating to the observations he made on the exterior appearances of PW1 and PW2, such as on matters relating to that they both looked as if they were in a state of shock, reluctant to speak, avoiding the eye contact, all suggestive of their state of being shocked and despite its relevance to the defence of consent, that that part of evidence had not been subject to any questioning and as such remained unimpeached. In relation to that it is important to recall that the examination of both PW1 and Pw2 were carried out on 13 May 2013, at around 11p.m. within a time quite close to the alleged incidents of rape.
[18] Since the evidence of the Doctor shines a light on the medical condition of the victims whilst being examined and given the relevance of such evidence to the case, I shall reproduce the relevant portions of the testimony; (page 301)
“Dr. Maharaj: Yes, I vividly remember examining two girls at Nausori Health Center.
Mr. Vosawale: And who brought these girls to the Health Center?
Dr. Maharaj: At that time there were these two girls that came in, there was an Officer with them but I just call these girls in and then with my nurses, I examine them.
Judge: So you medically examined two girls at Nausori Health Center they were brought in by what?
Dr. Maharaj: They were sent in by Police with their medical forms but when I called them in so they were the only victims that came in.
Mr. Vosawale: Now these Medical Forms that they had with them, who filled out this Medical Forms?
Dr. Maharaj: I filled out those Medical Forms and they are my handwriting.
Mr. Vosawale: But Doctor if you were to be shown this Medical Forms would you be able to....
Judge: Perhaps because this is part of the Agreed Facts, paragraph 8, Complainants of Medical Exam at Nausori Health Center by Doctor A Maharaj on 13th May, 2013, is any objection that the Medical Reports goes there immediately.
Ms. Tarai: I don’t have any problem with it.
Judge: Both Medical Reports and Copies to the Assessors. Have you got the two?
Dr. Maharaj: Yes, I have.
Judge: So which one you going to start with, Prosecution.
Mr. Vosawale: Now, Doctor can you look at the Medical Examination of PW1.
Dr. Maharaj: Yes, I’m there.
Mr. Vosawale: Now, Doctor what was the demeanor like of the person that you examined?
Dr. Maharaj: As the patient walked in and as I was conversing with the patient, that point in time the patient looked shock to me meaning that she was not talking a lot. She only talked when I asked her something.
Judge: So you recorded this in the Medical of your report?
Dr. Maharaj: Yes, when I’m in shock that’s what I mean. And having a blunt effect it basically means that she was looking down and not making eye contacts with me and not responding as a normal person does when they come to me.
Judge: So she was not making eye contact, what else?
Dr. Maharaj: She was only talking when I asked her something. So I had to dig in, that’s what I mean by she was looking shocked and had a blunt effect.
Mr. Vosawale: But Doctor, did this PW1 sign on this Medical Report?
Dr. Maharaj: She did not sign as I can see on the form but she verbally consented. I make some marks there for her to sign but I’m not sure whether she forgot or for some reason she did not sign. The reason I cannot recall at this point in time.
Mr. Vosawale: But she consented to you verbally?
Dr. Maharaj: Verbally, she did before I started my examination.
Mr. Vosawale: Now Doctor your specific findings, I’ll take you to D12 of this Medical Report. Can you tell us what your findings were?
Dr. Maharaj: So I found that there was a 0.5cm laceration noted at the vaginal introitus at 6 o’clock position with minimum bleeding seen from that laceration. Second thing I have found upon examining her vagina, there was a thick white discharge was inside the vagina as well.
Mr. Vosawale: Thank you Doctor. Now can you explain to us those 0.5 at part (a) 0.5 laceration, can you tell us.
Judge: Perhaps there is a diagram, there normally given to you at the back to drawn, can you draw what you record in D12 (a)?
Dr. Maharaj: Yes, I can.
Judge: Let me see. We will try and copy your diagram probably we will have to photocopy it later and put it in to our file, show it to the Prosecutor, Defense and to the Assessors. Bring it to me again so that I can quickly draw. The thing Doctor it will be good practice I know you will be doing a lot of this in the future. So it is always advisable if you tell your colleagues that it will assist us a lot if they do draw the diagrams.
Mr. Vosawale: Now Doctor, the diagrams that you have shown us with laceration at the vaginal introitus, what could have caused such laceration to be present?
Dr. Maharaj: Just like any laceration, this laceration has to be caused by blunt force that is applied to that area that is the vaginal introitus. And this blunt force, forces the layer of the skin to go apart, in this case goes right through the skin.
Judge: So you’re saying the blunt force tears the skin?
Dr. Maharaj: Yes.
Mr. Vosawale: And Doctor, can this blunt force be a penis?
Dr. Maharaj: Yes, it can be.
Mr. Vosawale: Doctor, in your professional opinion if a person had been forced to have sex with another, would laceration have developed from this forceful penetration of the vagina?
Dr. Maharaj: Yes. This laceration can happen because of the blunt force as I have said and it can happen during other sexual intercourse or if someone is defensive about sexual intercourse as well it can happen in normal sex as well.
Judge: So the laceration could happen in forceful and or normal sexual intercourse?
Dr. Maharaj: Yes.
Mr. Vosawale: You also mention Doctor that if someone is defensive?
Dr. Maharaj: Yes, usually these injuries can range from a small laceration to grievance injuries depending on how defensive someone is about it, if someone is defensive then.
Judge: Defensive, what do you mean?
Dr. Maharaj: By defensive I mean that if someone does not want to have sex and that person is forced so that person will try to protect. And in protecting defensive mechanisms are to bring your legs together and things like that, those can give rise to those injuries.
Mr. Vosawale: Thank you, Doctor. Now, in your summary and your conclusion at D16 of this Medical Report, is that the same conclusion that you are making in Court today?
Dr. Maharaj: Yes.
Judge: What was the issue that she gave you?
Dr. Maharaj: She told me that she was sexually assaulted by someone by the name of Bavesi at around 6pm and the incident happened in somewhere in Nasinu and that she was taken to the cemetery where this incident happened.
Mr. Vosawale: Thank you, Doctor. Your other findings on this vagina examination, what is the thick white discharge. Did you take swabs of this white discharge?
Dr. Maharaj: Yes as I took a sop as I have mentioned later on and it was taken for analysis by the police.
Mr. Vosawale: Can you confirm what these white discharges were?
Dr. Maharaj: I cannot really confirm without a microscopic analysis what the discharge was but in our few possibilities that it could be one is a normal vagina discharge that females have towards a mid of their cycle it looks just like that. There some infections in the vagina like fungal infections it is the infection that can caused that kind of discharge or it could be semen as well but I cannot confirm that without the microscopic analysis.
Mr. Vosawale: Now, I’ll take you to the second examination you conducted on PW2.
Judge: First of all do you want to tell him this is Medical Exhibits?
Dr. Maharaj: Yes.
Judge: This will be?
Mr. Vosawale: P1, My Lord.
Judge: PW1 Medical Report tender as Prosecution Number 1, second medical report?
Mr. Vosawale: Now, this second medical report Doctor, did the person that you examine signed on this medical report?
Dr. Maharaj: Yes, she did.
Mr. Vosawale: Now, I’ll take you straight to D11, Doctor can you tell us what were your initial impressions per person?
Dr. Maharaj: So as this client walked in she was again looking shocked by the incident and by shocked I mean that she was not making proper eye contact with me, she was just talking when I asked her and not talking on herself. And but at that time she was not in any obvious distress or anything she was calm but she was looking quite and shocked.
Judge: So the patient was look shocked was she?
Dr. Maharaj: Yes.
Judge: But was calm?
Dr. Maharaj: But was calm and not in any distress.
Mr. Vosawale: And I’ll take you directly to the findings that you made in D12 in this report. Please elaborate on your findings at part (a)?
Dr. Maharaj: So D12 part (a) I find out that the hymen was not intact and I also found on examining the inside of the vagina with the speculum I found that there was fresh blood bloated in the vagina coming from the cervix. And the patient told me at that time that she had been having her menses as well.
Mr. Vosawale: Now Doctor can you specify how hymen can be broken or not intact like your findings, can you elaborate more?
Dr. Maharaj: Yes, so there are few reasons when the hymen tends to break, one of them is sexual intercourse, the other one if there is any direct injury to the hymen for example, secondary to a fall or some penetrating wound.
Judge: So you are saying this hymen breaking is not a new injury is it?
Dr. Maharaj: Yes later on in D14 just because there was no bleeding from the hymen which happens in recent if it breaks recently then you would expect some bleeding to happen from there. But if there is no bleeding then we cannot say whether it’s a new break or it’s an old break.
Judge: So there was no bleeding?
Dr. Maharaj: Yes, so when I say I cannot comment as to when it was broken that means there was no bleeding at that time from the hymen.
Mr. Vosawale: So Doctor, can you ascertain in your professional opinion, if there were penetration of the vagina by a part erected penis, can you confirm whether they could be injuries or there could be no injuries?
Dr. Maharaj: So it can actually be both. If there is a penetration you might get some injuries depends on the person where the penis hits sexually and how forceful it is only might be no injuries as well.
Judge: If the penis was not that hard?
Dr. Maharaj: If it was semi erected, it can still penetrate the vagina, it can cause injuries or it might not cause injuries as well.
Mr. Vosawale: And for these specific findings of PW2, you cannot ascertain injuries in this?
Dr. Maharaj: Yes in her, I could not apart from the hymen which was broken whether undetermined time I don’t know. No other injuries I could find at that point in time.
Mr. Vosawale: Doctor, would you like to tender that as part of Prosecution Exhibit?
Dr. Maharaj: Yes.
Judge: PW2 Medical Report tendered as Prosecution Exhibit Number 2.
Mr. Vosawale: Thank you Doctor, I have no further questions.
Judge: Thank you cross examination Defense.
Ms. Tarai: Thank you, My Lord. Good Afternoon Doctor?
Dr. Maharaj: Good Afternoon.
Ms. Tarai: Doctor, for both of these Complainants when they came in, they informed you that they were coming in regarding a rape matter?
Dr. Maharaj: Yes, they did. So, when they came in then I was told that there is two victims suspected rape that I have to examine and then I went on to examine them.
Ms. Tarai: And because its rape allegation, you would be aware that there would be some allegations of force, correct?
Dr. Maharaj: Yes.
Ms. Tarai: And it’s normal procedure during medical examination for the Doctor to examine do an overall body check, correct?
Dr. Maharaj: Yes.
Ms. Tarai: For this particular matter I’m sure you must have done an overall body check on both the victims the girls, isn’t that right?
Dr. Maharaj: Yes, depending on what was clinical relevant to me at that time. So if they said that they have some injuries at certain places then it was relevant for me to check those areas.
Ms. Tarai: Now Doctor, wouldn’t you agree with me when they came in they didn’t exactly tell you where they had the injuries?
Dr. Maharaj: Yes.
Ms. Tarai: So wouldn’t you agree with me Doctor for both of them you did an overall body check you had to do your job?
Dr. Maharaj: Yes I did both check both places that were clinical relevant at that point in time. So if they did not say that they have any injuries to their chest it’s not clinical relevant for me to expose their chest and check.
Ms. Tarai: Did you check their backs?
Dr. Maharaj: Well, I haven’t written in this medical report and it has been sometimes so but I did not expose them definitely.
Ms. Tarai: So you only check their vaginal areas?
Dr. Maharaj: I checked that area and if they had told me that they had some injuries somewhere else then I will check that as well.
Judge: The question is did you check their vagina, yes or no?
Dr. Maharaj: Yes, I did.
Ms. Tarai: Now Doctor, I will take you to the first girl, PW1?
Dr. Maharaj: Yes.
Ms. Tarai: Earlier on you said that the laceration which you had noted it can happen from a blunt force during sexual intercourse or if someone is defensive about sex, so it can happen forceful or normal sex?
Dr. Maharaj: Yes.
Ms. Tarai: So, by normal sex you mean sex with consent.
Dr. Maharaj: Sex with consent.
Ms. Tarai: And later on, you also talked about defensive mechanisms that can be used during sexual intercourse?
Dr. Maharaj: Yes.
Ms. Tarai: For example, bringing legs together can result in this injury, correct?
Dr. Maharaj: Actually the bringing your legs together does not get that injury but it makes penetration difficult. So difficult penetration can lead to injuries it’s one of the possibilities.
Ms. Tarai: Now Doctor, is it possible that laceration can also depend on the sexual position which was used during intercourse?
Dr. Maharaj: The laceration can actually happen anywhere, it can happen inside the vagina it can happen outside the vagina. It can happen on the perineal skin as well on the injuries but it does not mean that any particular position will give laceration to a specific place.
Ms. Tarai: So, Doctor it’s also possible for you to conclude that for Vani it was possible she had consensual sex, correct?
Dr. Maharaj: Yes, it’s one of the possibilities because consensual sex can also give rise to laceration.
Judge: So you are saying a consensual sex and non-consensual sex can give rise to this laceration?
Dr. Maharaj: Yes, both can.
Ms. Tarai: Now Doctor my last question did you happen to see any bruises or any scratch marks on their body parts when they came for your examination?
Dr. Maharaj: If I haven’t mentioned it in here, then I have not.
Ms. Tarai: Then you did not see it?
Dr. Maharaj: I haven’t found any bruises or anything.
Ms. Tarai: Thank you Doctor, My Lord that will be all.
Judge: Right thank you, re-examination.
Mr. Vosawale: Just a point to clarify when you were asked by the learned Defense counsel if it could be, if it could be present by way of consensual sex, I want you to please clarify from the history related to you by Vani, is it consistent with your finding?
Dr. Maharaj: Yes, the history that she told me, she told me that whatever she told me that it does not happen by consent that what she told me that she was raped that means that is not by consent. Then I found the laceration that’s why I have said that there is evidence of raised and forceful sexual intercourse present and by that I mean that if you bring the history with the examination and try to co-relate the two, that’s what I come up with.
Mr. Vosawale: So you confirm the history in your findings?
As stated earlier, the medical examination of PW1 and PW2 had been within a few hours after the alleged incidents of rape and even at that time they were in a state of distraught and shock as described by the Doctor. At no stage there had been any attempt to challenge that evidence, which is demonstrable of the effect left on PW1 and PW2, who suffered the alleged sexual assault. The question that begs for an answer is if the sexual involvement had been consensual as alleged by the defence, would one find PW1 and PW2 in the state that the Doctor deposed to in his evidence. Neither the evidence of PW1 and PW2 nor did the evidence of the doctor come under any challenge regarding this aspect and thus the evidence relating to this aspect remains unimpeached. In a trial of this nature, in addition to the direct evidence deposed to by the witnesses there are strings of circumstantial evidence, the combined effect of them could be used in determining where the truth lies. It is the duty of a trial judge to advert his mind and to identify such evidence and deliberate on them in the final determination of a trial. In trials, cases are based not only on direct evidence which are easily discernible but also on circumstantial evidence through which inevitable, unequivocal inferences could be drawn in determining the final outcome of a case. The duty of a trial judge is to identify them and to analyze them as the law prescribed. In our pursuit of justice, there should be clear evidence of judicial endeavor to that effect reflecting through the summing up of a case.
[19] The evidence of Seini Kotoisuva Koroilagilagi, the cousin sister of PW1 and PW2 plays a vital role in the case, in the sense her evidence corroborates the evidence of the Doctor in so far as the evidence relating to the after effects of the alleged crime on PW1 and PW2 are concerned. On 13 May 2013, at around 8.00pm she had been with her aunt at Wainibuku, she had visited her grandmother, and on the way she met one of her cousins with whom she went to Nakasi Police Station looking for PW1 and PW2, who are her relatives. On their way, the witness met PW1 and PW2 coming down the driveway. When she met PW1 and PW2, PW1 was crying and PW2 was in a state of shock. Describing the state of PW2, the witness further stated that PW2 looked ‘shocked and lost’. The witness questioned PW1 to find out the reason for her crying. As PW1 was about to explain the reason for crying, the appellant had approached them and patted PW1 on the shoulder. Reacting to that PW1 had rushed behind her as that she was taking cover behind her to avoid the appellant. PW1 had then told the witness that the police officer did something to her and if she wanted the truth, to ask PW2. In responding the witness had questioned PW2, who in turn had confirmed that the police officer did something to both of them.
“Ms Lodhia: That the officer did something too?
Ms Koroilagilagi: To PW2 too.
Ms Lodhia: Madam, when you got this information from PW1 and PW2 that the Police Officer did something bad to them, what did you do about this information?
Ms Koroilagilagi: I asked the Police Officer.
Ms Lodhia: And then?
Ms Koroilagilagi: I asked him the second time.
Ms Lodhia: After asking him, what else did you do?
Ms Koroilagilagi: I told him he came to our house regarding the Law.
Ms Tarai: (defense counsel) Sorry, My Lord is there any relevance to this?
Judge: Come again? Yes, exactly you are right. Where are you taking us because this case will be decided on the word of the Complainant against his word if he chooses to give evidence and the evidence given by the doctor? It appears to me that you are taking us on a wild goose chase. The main evidence is been given by the ...”
[20] As can be seen through the transcript the learned trial judge’s intervention had prevented the prosecution in pursuing the line of questions that it intended to carry on, most probably to ascertain an aspect of evidence that would have been relevant to establish the evidence of “subsequent conduct “of both the accused person as well as the victims. Such evidence is relevant in trials as the use of it both permissible in law as well as admissible against an accused if it reveals an inferential evidence pointing to a position that is impossible to be assailed to protest ones innocence.
Phipson on Evidence, 12th edition, Chp.9; “Facts relevant to show identity, or connect the parties with the transaction”, on “subsequent conduct”, para 388, at p.390 states that;
“The presence or absence of facts showing his consciousness of having done the act may also be proved –e.g. (in criminal cases), precautions taken to avert suspicion; change of demeanor or mode of life; flight; the fabrication or suppression of evidence; or giving of false names, addresses and explanations”.
[21] The evidence of subsequent conduct of both the victims and the accused persons plays a pivotal role in so far as its relevancy to the issue under consideration at a trial. The evidence of the above witness, had it been allowed to flow into the main stream of evidence, would have made a valuable contribution to the case at hand and it was frustrating to observe that the counsel for the appellant at the trial, by raising an objection without a legal basis, has prevented the inclusion of such evidence and in my view that that objection should have been overruled in limine.
[22] Be that as it may ,her evidence was not sought to be impeached by cross examination and as such it remains uncontroverted , particularly as far as her testimony relating to PW1’s and PW2 ‘s state of “being distraught and shaken” is concerned.
The Defence
[23] In testifying, the appellant took up the position that he had consensual sexual contact with both PW1 and PW2, who at the cemetery allured him for the sexual encounter described in the case. As already stated the appellant was 41 years old when this happened, married with two children over 20 years of age. At the time of the incidents, he was in his uniform and he admitted in evidence that he was physically stronger than PWI and PW2. Despite the ongoing investigation conducted against PW1 and PW2, the appellant had within a matter of one hour caved in to the seductive advances made by both PW1 and PW2, who by kissing him, by fondling his private parts and by enticing him dragged him in to indulge in having sex at a desolate place in the cemetery. He admitted as a police officer of the area that the terrain in the cemetery is his familiar ground. In both incidents of being enticed by PW1 and PW2 there had been striking similarities to his description of the manner in which the two girls, who were under his investigation had behaved and the defence was affirmative that the girls, if they disapproved of the conduct of the appellant , could have found a way to escape from his grip. Both PW1 and PW2 maintained that they could not match up to the appellant’s strong physical power. The counsel for the appellant, at the end of the summing up made an application for redirection on this matter that the two girls did nothing to escape from the appellant. Inferential in this approach was to establish that this was a case of consent and as such the charges cannot be maintained.
Having examined the totality of the evidence of the appellant, I find that there are several serious contradictions inter se and per se and some of the factual positions based on his evidence were never put to PW1 and PW2 for the purpose of discrediting the witnesses. For instance in page 343, referring to the missing sim card the appellant stated as follows;
“she told me that the sim card was at but when we reached the cemetery or the graveyard where we were sitting down that we had sex on before having sex, when she touched my penis something hit my penis and I asked her. hey what is that something like a sharp point and there was a sim card.”
[24] These were new pieces of evidence with which PW1 and PW2 were never confronted to impeach their credibility. The inconsistencies, contradictions, infirmities ,as the trite law states should be used in evaluating the weight to be attached to the evidence of a witness and the results of such exercise should be set out in a judgement or in the summing up for the purpose of assessing the judgmental process involved in the credibility of witnesses.
Summing Up
[25] The learned trial Judge had placed the totality of evidence, quite dispassionately, before the assessors and left it for their consideration. As the case revolves around the issue of “who to believe”, the learned trial Judge, invited the assessors to consider the entirety of evidence to solve the problem of credibility, meaning whether or not the prosecution should be believed beyond any reasonable doubt.
[26] The assessors were unanimous that the appellant was not guilty. The learned trial judge disagreed with the assessors and delivered the judgment.
[27] The learned trial Judge, in keeping with the legal requirements, made an observation in the judgment about the opinion of the assessors. According to him despite his disagreement, the assessors’ verdict was not perverse. The learned trial Judge acknowledged that the assessors arrived at that conclusion, as the law provides for that. In my understanding, what the learned trial judge was trying to convey was since the assessors were exercising their power as per the law, he did not consider the opinion of the assessors to be perverse. Certainly in place of the word perverse, he could have used another expression to avoid confusion. Merely because the opinion of the assessors does not coincide with the judge’s view, no judge should declare the opinion of the assessors to be perverse. In that sense I do not find anything to conclude that the learned Trial Judge was self-contradictory, as counsel appearing for both parties were trying to make out at the single judge’s hearing. Based on his own judgmental powers the learned trial judge held that the prosecution has been proven beyond reasonable doubt.
[28] In my opinion, the learned trial Judge focused his attention onto the main issue involved in the case, ‘the credibility issue’ of the evidence. He believed the evidence for the prosecution while refusing to accept as credible the defence of consent. He used the correct principles of law in arriving at that conclusion. In the light of the factual matrix emerging from the evidence of the case he is free to do so and unless there is a manifest miscarriage of justice occasioned one cannot interfere with his decision. In my view the appellant had not been able to establish such a fact in this appeal.
[29] I am convinced, having regard to the evidence in total, he has ample justification to hold that the evidence of PW1 and PW2 pass the test of credibility beyond reasonable doubt.
The issue of disagreement with the majority opinion of the assessors
[30] Both counsel made extensive submissions on this issue and I will revert back to this matter later on in the judgement again. The learned trial judge’s disagreement with the assessors’ opinion could be seen through the passages of the judgment in which he had correctly highlighted the issue of “credibility” of the witnesses and in the light of the evidence that transpired in this case, such conclusion on his part is satisfying the legal requirements, namely the cogent reason on which he relied in disagreeing with the assessors. Having taken as a whole, and applying the test of credibility to the evidence of the case, I am unable to conclude that the learned trial judge had arrived at a wrong conclusion which is based on unsafe, insecure or insufficient grounds. (Praveen Ram v. The State, CAV0001 of 2011; 9 May 2012).
[31] In my opinion in relation to this, what matters is not the volume but the essence, in the sense if the reasons for the disagreement with the opinion of the assessors can be distilled into a comprehensible articulation which is consonant with the evidential base upon which the case has been built up, in which there isn’t any perceivable discordance based on insufficient, insecure and prejudicial grounds, that in my opinion could be considered as providing sound basis to justify the trial Judge’s disagreement with the assessors. The test of cogency has to be an objective analysis of facts in which a holistic view is required with a special emphasis being attached to the nature of the evidence transpired in the trial. In the final analysis, it is the matrix of evidence that becomes the wattle and daub of a case. Having said, I shall now turn to the grounds of appeal.
On the Grounds of Appeal
[32] According to the grounds of appeal submitted originally there are three grounds upon which the appellant proposed to rely in assailing the findings of the learned trial judge;
(1) That the learned Trial Judge erred in law and in fact when he disagreed with the opinion of the assessors of not guilty for all the 4 counts of Rape without giving a cogent reason, especially when he found that the assessors’ verdict were not perverse and that it was open to them to reach such conclusion on the evidence.
(2) That the learned Trial Judge erred in law and in fact in rejecting the appellant’s credibility when he took into account an irrelevant issue that the appellant had behaved in a manner that had fallen below the standard required of a police officer.
(3) That the learned Trial Judge had erred in law and fact when for counts 3 and 4 he was of the view that the appellant had forced himself on the complainant because he was in police uniform and had abused his position of authority when he did not come out in evidence. (sic)
[33] The learned counsel for the appellant, at the outset of his submissions informed the Court, that in dealing with the three grounds, having taken into account their characteristic closeness in nature, wishes to consider them together, for in the final analysis the three grounds are formulated to establish that the rejection of the opinion of the assessors is an error, because the judgement does not meet the standard of ”the cogency test”, namely there is a manifest inadequacy of cogent reasons to justify the learned trial judge’s decision to disagree with the opinion of the assessors. In other words it is the submission of the appellant’s counsel that the opinion of the assessors should have prevailed over the decision of the learned trial judge to convict the appellant.
[34] The appellant’s counsel is emphatic that the reference made by the learned trial judge to the fact that even if PW1 and PW2 had made amorous advances, considering that they were being investigated by him on a complaint of theft, he ought not to have carved in to the enticement was a wrong assertion based on which he disagreed with the opinion of the assessors. The impugned portion of the judgement is as follows; paragraph 6 of the judgement p.93;
“My reasons are as follows. I accept the two complainants [PW1] and [PW2] were under investigation by the accused, a police officer, for allegedly stealing Waisea’s mobile phone .The accused came to their house on 13 May, and requested them to come to Nakasi Police station. They were on their way to Nakasi Police Station, when the accused stopped at Nasinu Cemetery to interrogate complainant no.1 (PW1). He sent PW2 and another to take the lead to Nakasi Police Station. The accused was in police uniform, a symbol of authority .While at the grave, the accused proceeded to have sexual intercourse with her. He admitted in his evidence that his penis was touching PW’s vagina. He denied penetrating PW1’s vagina at that time. PW1 said, he penetrated her vagina with his penis at that time. On this issue I prefer to accept PW1’s evidence because she was a credible witness to me. I reject the accused’s denial on this issue, because he was not a credible witness to me. I reject the accused’s denial on this issue, because he was not a credible witness. For a start, it is not proper for a police officer to attempt to have sexual intercourse with a person he’s investigating in the course of his duty. The accused’s behavior in this case falls below the standard required of a police officer.”
[35] The learned Counsel for the respondent, making a lengthy submission, urged that even if that assertion should be considered as inappropriate still the available evidence is sufficient to sustain the conviction, and as I understood him, the available evidence is overwhelmingly convincing to withstand the decision to convict. Referring further to a single Judge’s ruling in Eneshwar Raj v State, Criminal Appeal No.0008 of 2018 [In the High Court at Suva Case No HAC 99 of 2016]; the Counsel further submitted that there is “a grey area flowing from the past 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” per Prematilaka J. In relation to this mooted issue, I find that the learned trial judge’s pronouncement was not without an evidential basis. He had relied on the evidence of the appellant at the trial to make this conclusion in the judgement and for the purpose of clarity I wish to reproduce same herein;
(see ps. 350 - p.351)
Mr Vosawale; You were to bring two girls to the police station that day?
Mr Bavesi; Yes My Lord
Mr Vosawale: But one of them did not reach the police station that day?
Mr Bavesi: They both reach the police station My Lord
Mr Vosawale: You stated in evidence of chief that one, you said three was away and one
was with you at the cemetery?
Mr Bavesi: They both reached the police station, my Lord.
Mr Vosawale: But with you on that day , when you brought them one of them was with you
at the cemetery while you sent three others to the station? You agree that when attended to Wainibuku you were in uniform?
Mr Bavesi; That is correct my Lord.
Judge: So when you attending to this case you were in Police in Police uniform?
Mr Bavesi: Yes, my Lord.
Judge: So when you attending to this case you were in police uniform?
Mr Bavesi: Yes, my Lord.
Judge: Correct me again, When I was attending to the mobile phone complaint on the 13th of May, 2013 you were in police uniform?
Mr Bavesi: Yes, my Lord.
Mr Vosawale: You also agree Mr Bavesi that when you wear Police Uniform you have an authority?
Mr Bavesi: Yes, my Lord.
Judge: Put it this way when you were in uniform you have authority of the law bestowed on that uniform?
Mr Bavesi: Yes, my Lord.
(see p.362)
Mr Vosawale: You know it was wrong for a policeman on duty to have sex?
Mr Bavesi: Yes, my Lord.
Mr Vosawale: Thank you. No further questions my Lord.
Judge: So you agree it is wrong for a policeman to have sex with the two complainants while investigating a case of mobile, you agree with that? Yes, no?”
[36] The afore quoted evidence should be read along with the rest of the evidence of the appellant to gain a clear picture of the behavior of the appellant in that night whilst conducting the Investigation. It is clear from his evidence in chief that by the time he reached the cemetery he already knew that there was no need for the continuation of the investigation into the missing phone for the complainant had already informed him that the phone had been just returned; see p.327
“Ms Tarai: So at the cemetery what happened?
Mr Bavesi: While we reach the cemetery there was a short cut to the kiosk inside the old cemetery. There were two kiosks the first one we reached, then I told V to wait for a while and let the three take the lead to Nakasi police station. The three that take the lead to Nakasi Police Station are PW2, Waisea and Karalaini.
Ms Tarai: Now why did you tell him to take the lead and not V?
Mr Bavesi: The reason is because when I talk to Waisea he told me that the phone has been just returned then he has to close the case because they are related to the two complainants who are accusing me.” (pg337)
On a close examination of the evidence of the appellant, it becomes amply clear that despite the fact that the man who lost the phone, one Waisea had informed the appellant that there was no need for further probing into the complaint over the missing phone, the appellant had continued the investigation by questioning both PW1 and PW2 in a desolate area, in the dark, in a cemetery, whilst donning the official uniform. On his orders the persons who accompanied both PW1 and Pw2 had left the two girls in the company of the appellant and there is striking similarity to the manner in which the appellant said that he was seduced by the two girls, while he was conducting the investigation not in the nearby police station but in the depth of darkness of a cemetery. (see pages 327 onwards of the proceedings).
[37] In the light of such material I am unable to agree with the contention that the learned trial judge erred by making a special reference to the fact that the appellant was in his uniform whist being seduced by two young girls under investigation within a gap of time of merely one hour. In a careful study of the impugned paragraph 6 of the judgment, it is clear that the learned trial Judge had the test of credibility, based on the totality of evidence in the back of his mind in deciding the culpability of the appellant.
[38] Having regard to the issue of wearing the uniform whilst being seduced by the two girls as alleged by the appellant , the learned trial judge made allusions to the fact that there was an exertion of power and authority over PW1 and PW2 by the appellant in committing the alleged sexual offences. Inferentially, what the learned trial judge tries to drive home is that the appellant’s credibility of being a man seduced by two girls who were being investigated by him was in doubt. The learned trial judge believed that the authority attributed to a police investigator prevailed over the two girls from whom the appellant seemed to have hidden the fact that Waisea was not pressing the charges any longer.
[39] It is recognized even in international law regime that in cases of rape, which is prevalent against women around the world, there is a hierarchical structure in operation and in which the women could be subjected under the power of men.
[40] Preamble language of the Declaration on the Elimination of Violence against Women G.A. (UN) res 48/104, 20 December 1993 states;
“Recognizing the violence against women is a manifestation of historically -----power relations between men and women, which have led to discrimination over and discrimination against women by men and to the prevention of the full advancement of women and that violence against women is one of the critical social mechanism by which women are forced into subordinate position compared to men.”
Thirteen years later the language is reiterated in the preamble of (UN) G A res. 61/143, 19 December 2006 that states;
“Recognizing that violence against women is rooted in historically unequal power relations between men and women and that all forms of violence against women seriously violate and impair or nullify the enjoyment by women of all human rights and fundamental freedoms and constitute a major impediment to the ability of women to make use of their responsibilities.”
[41] The other issue, as I see it is not when the judge and the majority of the assessors could see eye to eye in so far as the final outcome of the trial is concerned, but when the judgement is not consonant with the majority opinion of the assessors. The thread bear law demands in instances of such, for the judge to substantiate his position with cogent reasons.
[42] On that behalf, in my opinion, there is the need to take a holistic view of the entirety of the attendant circumstances as exudes from the totality of evidence coupled with the directions in the summing up and the reasons given in the judgement. Unless there is a manifest miscarriage of justice surfacing from the final determination of the trial judge’s exercise of powers vested in him by law, no higher forum should interfere with the final outcome of a trial. Any decision on the cogency of the reasons as adduced by the trial judge should be assessed by evaluating the reasons in the backdrop of the matrix of evidence in particular.
[43] The earliest case that deals with the issue of the judge disagreeing with the opinion of the assessors appears to have been Ram Lal v. The Queen (Cr. App. 3/1958). Based on the dicta of that decision a great number of cases have been decided subsequently and Ram Bali v. R (1960) 7 F.L.R.80 at 83, has reference to the decision in Ram Lal and as it provides the basis of the legal concept relating to the issue involved in the instant case to be decided ,I wish to quote from the decision in Ram Bali;
“In order to justify a Court in differing from the unanimous opinion of the assessors who were in a favorable position to assess the reactions of a man of the class and race they would find the accused to be.. ,there must be very good reasons reflected in the evidence before that court....”(emphasis added)
“A trial judge would require to find very good reasons indeed, reflected in the evidence, before being justified in differing from a unanimous opinion of the assessors on such a question on facts.”
[44] As can be seen, the above pronouncement is an underpinning of law in relation to the exclusive domain of the judge as the final determining authority of the fate of a case. The good reason for the judge to depart from the opinion of the assessors should be based on the evidence of the case. It is the holistic approach to which I made reference earlier and in that context, having regard to the dicta in Ram Bali, any justification of the judge’s decision to take a view that is different to the one of the assessors, a holistic approach is required meaning, a consideration of the evidence taken as a whole, the nature of the analysis of the evidence as laid down in the summing up and the reasons adduced in the judgement, all without any compartmentalization.
[45] Reiterating the holistic approach that a judge should adopt in differing from the opinion of the assessors it is further stated at page 83 of Ram Bali that;
“It will be observed that, in both of these passages, the Court was careful to limit its propositions to the particular sort of question which arose in that case, namely, the probable reactions to alleged provocation of a man of a particular class and race; and this present Court does not doubt that, on such a question, the judge ought not to differ from a unanimous opinion of assessors unless he can find – and can find ‘reflected in the evidence’- very good reasons for so doing.(emphasis added)
As can be understood, this conclusion has a direct reference to the historical evolvement of the system of justice, particularly akin to our jurisdiction and several legal journals; carries extensive discussions on the subject; see Peter Duff on “The evolution of trial by Judge and Assessors in Fiji” and by Eric Colvin, Paclii .org/ journals/FJSPL/Vol. 108 no1/1.shtm/Criminal Procedure in the S.P. and (1997) http//www.Paclii.org;
The historical development relating to Judge/assessor disagreements
[46] The learned Professor Peter Duff, delving into the subject has stated that;
“As noted above, the fundamental point of the assessor system is that the judge is not bound by the opinion of the assessors and is free to overrule them and return a verdict contrary to their opinions. Until recently, legislation did not qualify in any way the judge’s power to dispense with the advice of the assessors. The 1875 Ordinance stated: ‘ . . . the opinion of each assessor shall be given orally . . . but the decision shall be vested exclusively in the judge’. Similarly, the relevant provision in the 1945 Laws of Fiji stated even more clearly: ‘The judge . . . shall not be bound to conform to the opinions of the assessors’.
Nevertheless, it became established through a series of cases in the 1950s and 1960s that the judge must give reasons for any decision that effectively overrules the opinions of the assessors. In Ram Lal, the Fijian Appeal Court stated that the judge must have ‘very good reasons’ for differing from the assessors. In Ram Bali, the court opined that in such cases, the judge should proceed on ‘cogent and carefully reasoned grounds based on the evidence before him and his views as to credibility of witnesses and other relevant considerations’. This latter case went to the Privy Council, which observed that the trial judge was taking ‘a strong course’ by differing from the unanimous opinion of the assessors. Nevertheless, it thought that as the judge had paid ‘full heed’ to the views of the assessors, his decision was justifiable because it was based upon his own ‘emphatic conclusions in regard to the evidence’. In Shiu Prasad, the Appeal Court repeated that the judge must have ‘cogent reasons’ for differing from the assessors.
It is clear that that it has not been uncommon for the judge to disagree with the assessors. In the debate over the abolition of the jury in 1961, the Attorney General stated that there had been 154 trials in the Supreme Court in the previous ten years and that the judge had overruled the opinion of the majority of assessors in 21 of these cases. The Attorney General seemed more than happy that this indicated a high level of consensus. One might argue, however, that these figures do indicate that there was some dispute about the correct verdict in around one in seven cases and that this level of discordance was perhaps not particularly satisfactory. Further, the Attorney General noted that the disagreements included at least two cases where the judge had either acquitted the accused or reduced the offence after the assessors had expressed their opinion that he was guilty. The clear implication is that in the bulk of the remaining cases, the judge had convicted the accused where the assessors had thought that the charges were not proved.
In 1973, the Criminal Procedure Code (Amendment) Act incorporated into the relevant legislation the common law requirement that the judge give reasons for overruling the assessors. This was the incidental effect of a move to streamline the trial process. Up until that time, the judge had summed up for the assessors, reminding them of the evidence and explaining the law, and then, after hearing their opinions, he had issued his judgment. The judge had to produce both the summing up and the judgment in writing and the Attorney General argued that the latter was almost always a ‘reduplication ‘(sic) of the former. Consequently, it would be much more sensible, where the judge agreed with the opinion of the assessors, for his judgment simply to state that this was also his verdict because all the details of the evidence and law would be contained in the summing up. It would only be in the situation where the judge disagreed with the assessors that he would need to explain in a judgment why, on the basis of the evidence, he was reaching a different verdict.
The leader of the opposition, S M Koya, a lawyer (and, incidentally, the appellant’s counsel in Ram Bali), objected to the move to dispense with the requirement upon the trial judge to produce a fully reasoned judgment in all cases. In essence, his point was that the assessors views were ‘merely opinions . . . the purpose (of which) is to give aid to the judge and the judge is there to receive the aid and that is all’. He argued that the judge could not reveal too much of his own views to the assessors in the summing up because that would be ‘usurping’ their function, thus it was still necessary for him to issue a full judgment, explaining what he had found to be the facts, which witnesses he had believed and disbelieved, and what his conclusions were. In other words, the judge still had to explain why he was accepting the assessors’ advice. Technically speaking, S M Koya did have a point. If the judge does not adequately explain why he agrees with the assessors, the verdict becomes as inscrutable as that of a jury.
The Attorney General, however, was not impressed with this argument and the proposed reform went through unaltered. The statute now relieves the judge of the obligation to issue any judgment, other than the verdict, except that ‘. . . when the judge does not agree with the majority opinion of the assessors, he shall give his reasons, which shall be written down and be pronounced in open court, for differing with such majority opinion . . .’
There have been no reported appeal cases on judge/assessor disagreements since this amendment to the Criminal Procedure Code but there have been several unreported cases. Essentially, these have reaffirmed that the judge is entitled to disagree with the assessors but that he must give satisfactory reasons for so doing.”
[47] However, the relevant legal approach that should be taken in general situations, (meaning those that are devoid of any particular characteristics such as extenuating circumstances as referred to above in para 42 of my judgement) has been laid down as follows; see Ram Bali (supra)at page 83;
“But it would be wrong to erect this into a general proposition applicable in all cases. In general , it is enough if , as in the present case , the Judge proceeds on cogent and carefully reasoned grounds based on the evidence before him and his views as to credibility of witnesses an other relevant consideration”.( my emphasis).
[48] In upholding the approach in Ram Bali, in the case of Privy Council Appeal No,18 of 1981 the Privy Council further held that;
“This was a strong course to take but there is no reason to think that the learned Judge did not pay full heed to the views of the assessors or to the striking circumstances that they were unanimous in favor of acquittal. Nor is there reasons to think that he was unmindful of the value of their opinion or their qualifications to assess the testimony of the various witnesses in a case of this nature. In his summing up he had said that their opinion would carry great weight with him. The decision of the learned Judge was based upon his own emphatic conclusions in regard to the evidence.
Their Lordships can discern an error in the approach of the learned Judge in arriving at his positive and affirmative conclusions. It is manifest that his acceptance of certain witnesses and his rejection of others made him satisfied beyond even ‘the slightest shadow of doubt of the guilt of the appellant.”
[49] In the case of Narendra Prasad v. Reginam (1971) 17 F.L.R. 200, having quoted the above pronouncement in the Privy Council it states that;
“We are satisfied that ample reasons did exist for the action of the learned trial Judge in differing from the opinion of the assessors , and that proper consideration had been given by him to all the factors involved.” (emphasis added)
[50] In the case of Shiu Prasad v R. (1972)18 F.L.R.68 , at 71 it states that;
As regards the second ground of appeal, it is true that if a judge is to differ from the opinions of the assessors he must have cogent reasons for doing so and those reasons must be founded upon the weight of the evidence in the case and must of course also be reflected in his judgement,”
It is clear from the above pronouncement as well, that in deciding on the justifiability of the course that the trial judge has taken in differing from the opinion of the assessors, the attention should primarily be on the weight of the evidence as adduced in the trial. Such weight should be considered in conjunction with the approach the judge has taken in the summing up and the judgement.
[51] In the case of Apakuki Saukuru v. Reginam Cr. App. No 45 of 1981, the issue of the trial judge disagreeing with the opinion of the assessors became a mooted point. In that case the appellant was tried by the Supreme Court of Fiji at Lautoka on a charge of murdering Sarju Prasad on the 15th November 1980. At the conclusion of the trial there was a division of opinion among the assessors in which one assessor opined Saukuru was not guilty while the others opined that Saukuru was not guilty of murder but of manslaughter. The trial judge was not in agreement and he proceeded to convict Saukuru for Murder. The issue of the trial judge’s disagreement with the opinion of the assessors was a ground in the appeal. The Court of Appeal held that;
“... But on the decided cases the learned judge was required to give cogent reasons for differing from the assessors. His direction to them ran on the same lines as his judgement, emphasizing the clarity of the appellant’s recollection; he left it to the assessors to give the appellant the benefit of doubt, though he used the formula “sure of the guilt”-“if you do not feel sure then it is your duty to acquit him”
“What we are leading up to is the question –if the majority of the assessors thought there was a doubt, has the learned judge given emphatic conclusions reflecting in the evidence for excluding that doubt. He has not purported to say why he differed –merely that he disagreed. He has summarized the evidence. In many, probably most cases that could be sufficient particularly if there could be seen aspects of the evidence which the assessors have clearly failed to appreciate. That is not the case here- all of the evidence was summed up to the assessors and the divergence is hardly more than one of personal opinion as to the inferences which ought to be drawn. ... We are most reluctant to apply the principle we have been discussing and certainly do not wish extend it in any way, but when a judge adopts what the Privy Council called a strong line and overrules unanimous assessors, we agree with the decided cases that his reasons must be cogent and his own approach to the relevant law should be impeccable.”
[52] In the case of Mataiasi Raduva, John Heatley v. R Cr. App. No.109 of 1985, the assessors opinion was overridden by the trial judge and in the appeal it was held that
“Now there are cases from time to time in Fiji where a judge does convict in the face of contrary assessor opinion. These cases are rare and in our experience are one’s where the evidence against an accused is so overwhelming and so affirmatively established that one can say that the assessors’ conduct was perverse” (Quoted from Litiwai Stevano v. The State, Criminal Appeal No.14 of 1989 (Criminal Case No 7 of 1989).
[53] The above passage from the judgement bears a significant dimension to the subject under consideration, in the sense, the perversity on the part of the assessors has been brought under focus and the trial judge’s exercise of judicial power in overturning the opinion of the assessors has been highlighted. Thus, in scrutinizing the approach taken at a trial in evaluating the evidence requires the inspection of the approach of not only the judge but also the assessors, whose opinion has a bearing on the final outcome of a trial. Assessors are not required to give reasons for their opinion whereas the judge is bound by law to substantiate his position with good, sound reasons. Trial judges with their legally trained minds may perceive evidence in a manner which is not necessarily compatible with layman’s view that is the opinion of the assessors. The system as I understand does not demand the treatment of the assessors’ opinion as more realistic than that of a judge’s, solely because of the fact that their understanding of the social dynamics are autochthonous. There can possibly be many nuances, subtleties, facets and dimensions relating to a set of evidence through which unequivocal, inevitable inferences could be drawn and the possibility for such subtleties to escape the laymen’s eye is not an impossibility.
The analysis based on the decisions
[54] The power that derives from the provisions of the Criminal Procedure Code enables a High Court Judge to try and determine cases on indictments and in the conduct of the proceedings it should be by a Judge sitting with two or more assessors, whose opinion would be taken on board by the judge in arriving at a final decision on the matter. The law is that –
“the judge shall give judgment, but in doing so shall not be bound to conform to the opinions of the assessors ... Provided that, ... when the judge does not agree with the majority opinion of the assessors, he shall give his reasons, which shall be written down and pronounced in open court for differing with such majority opinion...”
[55] Clearly, the trial judge is not bound by the opinion of the assessors save that he may be persuaded by the opinion of the assessors to the extent that the totality of evidence would make it possible. Whenever the Judge’s approach to the evidence is in harmony with that of the assessors, the situation is easy to deal with. However, when the majority opinion of the assessors goes contrary to the views of the trial judge based on evidence, it gives rise to the problem as to what should prevail over the other. The disagreement on the part of the trial judge should be substantiated with good, sound reasons and that should find expression in the judgment.
[56] The decided line of cases discuss the extent to which an appellate court would be inclined to interfere with the final decision of the judge, who disagreed with the majority opinion of the assessors.
In my view this approach should be a holistic approach, in the sense, the nature of the evidence, the summing up and the contents of the judgment should all be considered together, in determining the accuracy of the trial judge’s final determination.
[57] Starting from the determination in the Privy Council case Ram Lal v. The Queen (supra), the thinking of the higher courts seems to be supportive of the said postulate. What matters mostly is what one finds as reflecting through the evidence and in the exercise of examining the justifiability of the final verdict of the judge, along with his summing up and the judgment, the nature of the evidence as transpired in the trial should also be taken into consideration. The nature of the matrix of evidence as adduced in the trial provides the basis for this approach. As said in Ram Bali v R (supra);
“A trial judge would require to find very good reasons indeed, reflected in the evidence, before being justified in differing from a unanimous opinion of the assessors on such a question of fact.”
[58] Another matter that arises out of this issue is the extent to which an appellate court would interfere with the decision based on facts made by a trial judge.
[59] Reiterating the position that I tried to establish earlier on the issue of the disagreement of the judge with the opinion of the majority of the assessors ,it is my view that a broader approach to the entire trial is required in the sense it is the judgement along with the totality of evidence and the summing up , all that is require to be examined in deciding the accuracy of the path the trial judge has traversed in arriving at the conclusion to disagree with the majority opinion of the assessors.
[60] In a recent case in which this issue was discussed once again the Supreme Court held that in the case of Praveen Ram v. The State Petition No CAV 0001 OF 2011, (on an appeal from the Court of Appeal Criminal Appeal No. ABU 0096 of 2008), the Supreme Court held that;
“80. A trial judge’s differ from , or affirm the opinion of the assessors necessarily involves an evaluation of the entirety of the evidence led at the trial including the agreed facts ,and so does the decision of the Court of Appeal where the soundness of the trial judge’s decision is challenged by way of appeal as in the instant case. In independently assessing the evidence in the case, it is necessary for a trial judge or appellate court to be satisfied that the ultimate verdict is supported by the evidence and is not perverse. The function of the Court of Appeal or even this Court in evaluating the evidence and making an independent assessment thereof, is essentially of a supervisory nature, and an appellate court will not set aside a verdict of a lower court unless the verdict is unsafe and dangerous having regard to the totality of evidence in the case.
81. Of course, as was noted in Ram Lal v Regina (Criminal Appeal No.3 of 1958), the trial judge must have ‘very good reasons’ for differing from the assessors. In Ram Bali v Regina (1960) 7 FLR 80, this Court emphasized that the trial judge should proceed on ‘cogent and carefully reasoned grounds based on the evidence before him and his views as to credibility of witnesses and other relevant considerations.’ This latter case went to the Privy Council, which observed that the trial judge was taking ‘a strong course’ by differing from the unanimous opinion of the assessors. Nevertheless, the Privy Council concluded that as the judge had paid ‘full heed’ to the views of the assessors, his decision was justifiable because it was based upon his own emphatic conclusions in regard to the evidence. In Shiu Prasad v Regina (1972) 19 FLR 68 at 71, it was reiterated that the judge must have ‘cogent reasons’ for differing from the assessors.’
[61] In his submission to us the learned counsel for the respondent stressed the point that the instant appeal is not a case where the learned trial judge’s findings should be disturbed because there is nothing in the trial to show that the trial judge had relied upon any misdirection or non-direction that had caused grave prejudice to the accused that resulted in serious miscarriage of justice” see Sharma v. State [2017] FJSC 5; CAV 0031.2016 (20 April 2017). Further in support of his position he drew the attention of the Court to the decision in Watt or Thomas v. Thomas [1947] House of Lords p.484, where it was held that “when a question of fact has been tried by a judge without a jury and it is not suggested that he has misdirected himself in law, an appellate court in reviewing the record of the evidence should attach the greatest weight to his opinion, because he saw and heard the witnesses, and should not disturb his judgement unless it is plainly unsound . The appellate
Court is, however, free to reverse his conclusions if the grounds given by him therefore are unsatisfactory by reason of material inconsistencies or inaccuracies or if it appears unmistakably from the evidence that in reaching them he has not taken proper advantage of having seen and heard the witnesses or has failed to appreciate the weight and hearing of circumstances admitted or proved.”
[62] I am inclined to agree with his submissions. Applying the ratio of the above decisions to the instant appeal I am unable to conclude that there is any material upon which the judgement of the learned trial judge should be reversed in the appeal.
[63] If I may recapitulate the postulant upon which I rely in agreeing with the findings of the learned trial judge;
(a) That the learned trial judge in disagreeing with the opinion of the assessors has correctly identified the ‘test of credibility’ as the point of departure from the majority opinion and when one takes a holistic approach to the entirety of the evidence coupled with the summing up and the reasons given in the judgment I am of opinion that the learned trial judges final decision to convict the appellant was not based on unsafe, or insufficient material and hence there is no miscarriage of justice caused.
(b) Having regard to the ratio of the decisions of the cases in relation to the disagreement of the trial judge with the majority opinion of the assessors what is required is to take an overall view of the entirety of the trial, which means the evidence as a whole, the summing up and the judgment. In that exercise the matrix of evidence should be given a special emphasis.
(c) In examining the final outcome of the trial it is important to draw the attention to whether the judge proceeds on cogent and carefully reasoned grounds based on the evidence before him and his views as to credibility of witnesses and the other relevant considerations [ (Ram Bali (supra) ].
(d) If the decision of the learned Judge was based upon his own emphatic conclusions in regard to the evidence the appellate court will not interfere with his decision unless there is a manifest miscarriage of justice. [PC No.18 of 1981 (supra)].
(e) It is important to examine whether the trial judge has given consideration to all the facts involved. [(Narendra Prasad v. R. (1971) 17 FLR 200)].
(f) It is important that the primary attention should be given to the evidence led in the trial to decide whether the decision of the trial judge is sustainable. [(Shane Prasad v. R. (supra)].
(g) In taking a holistic view of the decision of the trial judge to disagree with the majority opinion of the assessors it is important to examine whether the assessors had been perverse in expressing their opinion in a particular way. (Litiwai Setevano v. State Cr App No.14 of 1989 (Cr Case No. 7 of 1989)
[64] The learned counsel for the State invited the Court to apply the proviso to purge any irregularity in the handling of the matter by the trial Judge whose judgment may be deemed as providing sufficient grounds to disagree with the majority opinion of the assessors. As I have stated earlier the cogency test in its real sense does not necessarily mean the volume of reasons adduced by a Judge in arriving at a conclusion to disagree with the majority opinion of the assessors. As can be seen in this case the learned trial judge has very correctly relied on the test of credibility in disagreeing with the opinion of the assessors. Applying the holistic view that should be taken in deciding on the sustainability of the final decision of the trial judge I am of the view that the available evidence coupled with the summing up and the reasons given in the judgment are sufficient to sustain the conviction of the appellant.
[65] In the circumstances the appeal is dismissed and the conviction affirmed.
Prematilaka, JA
[66] I have read in draft the judgment of Gamalath, JA and agree that the appeal should be dismissed.
[67] However, I like to make some observations and express my view on one point of law referred to in the judgment of Gamalath, JA
based on Mataiasi Raduva and, John Heatley v. R. Cr. App. No. 109 of 1985 andu>Setevano v State
[68] In Mataiasi Raduva and, John Heatley v. R. Cr. App. 09 of 1985 th60;the Court of Appad refd referred to as an experience of court and remarked that where judges do convict in the face of contrary opinion of assessors these are cases where videnainst the accusedcused is so over-whelming and so affirmatirmatively established that one can say that the assessors' conduct was perverse. These remarks had been quoted in Setevano v Stu> [1991] FJCA 3; A 3; AAU0014u.89s (27 May 1991) but not necessarily followed or formed part of the ratio decidendi as the Court later in the judgment declared that
&#It is clear that a Judge inge in Fiji is entitled in law to disagree with the majority opinions of the assessors, and even where they are unanimous, but his reasons for doing so must be cogent and they should be clearly stated. In our view they must also be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial’
‘......accordingly we have carefully considered all of the evidence in the case. Our view is that on a proper consideration of the facts there is at least reasonable doubt that the accused was the person who committed the offence. He is entitled to be given the benefit of that doubt. The assessors' unanimous opinion is entirely explicable on this basis.
[69] Again in Kubukawa v State [1992] FJCA 18; AAU0011u.89s (13 October 1992), the Court of Appeal referred to Mataiasi Raduva and, John Heatley v. R. (supra) as thellant had reld relied on that decision for one of the grounds of appeal, but the Court does not seem to have affirmatively acted upon the remarks on ‘perversity’ of the assessors&; opinion stated in R>Raduva.
[70] In Sesenabaravi v State [1994] FJCA 39; AAU0001j.1994s (17 November 1994) the Court of Appeal did refer to some comments in Raduva but not the remarks on ‘perversity’ of the assessors’ opinion. The court followed the position on law stated in Setevano as quoted above.
[71] Then, in Patel v Fiji Independent Commission Against Corruption [2011] FJCA 56; AAU0040.2011 (28 October 2011) heard before four judges of the Court of Appeal there is a long and arduous discussion on ‘Trial by Judge and Assessors in Fiji – The Legal Framework’ [26] to [51], ‘Trial by Judge and Assessors – The Statutory Framework Governing Appeals from Conviction by Trial Judge Whether He Agrees or Disagrees with Opinion of the Majority of the Assessors’ [52] to [65], ‘Trial by Judges and Assessors – the Privy Council's Rule in Ram Bali’ [66] to [71], ‘Trial by Judges and Assessors – the Privy Council's Rule in Ram Bali’ [72] to [90] and ‘Trial by judge and Assessors Mataiasi Raduva and John Heately v Reginam’ [91] to [111].
[72] The Court of Appeal in Patel specifically disagreed with Raduva and Setevano in many respects and chose to follow Ram Bali (Privy Council), Narend Prasad, Shiu Prasadi>aand Saukuru. The CourtCourt also stated that instead of Leone Lautabui and Two Others v. The State Criminal Appeal CAV0024, CAV0011 and CAV0011 and CAV0025 of 2008 the Court of Appeal s follow Ram Bali< (e Privy Council Appeal No.l No.18 of 1961 of 6th June 1962). Fiji Court of Appeal decision >Ram Bali is reps reported as Bali v Reginam [1960-1961] 7 FLR 80 (cember 1960) whereas the Pthe Privy Council judgment ied asu>Ram Bali v. The. The Queen Privy Council Appeal Neal No.18 of 1961 of 6th June 1962.
[73] Hon. Ju William Marshall in the Cohe Court of Appeal in Patel stated as follows.
[90] I summarise the law as follows. I again elect not to comment on the trial judge's possible decision to acquit after a majority of assessors have tendered an opinion of guilty.
(1) After the opinions of "not guilty"&#re stated thed the trial judge has to decide whether to convict or acquit. He will review the evidence. He will be aided by his summing up which will have set oidence tending towards acquittal and tending towards conviconviction.
(2) The situation may be that after evaluation, the trial judge is emphatically of the opinion, based on the witnesses that he believes and the witnesses that he disbelieves and the primary facts that he finds proved beyond reasonable doubt that he should convict. If so he would fail in his statutory duty if he did not convict. The judge if he did not convict in these circumstance would not be applying the law which his judicial oath requires him to do.
(3) The test of "emphatic" conclusionuof gis also expl explained by the concept the trial judge being of the view "that to accept
their ops wons would result in a miscarriage of justice". See&
(4) Where it is a matter of which evidence and which witnesses to believe all that is required is the trial judge's subjective opinion that the matters he acts upon and his reasons are "cogent". The triage sees tees the witnesses, the appeal court does not. See again Narend Prasad (suquoted at paragra above&bove "Thdence is, as he saw it, it, was so cogent".
(5) In resperespect of witnesses and fact the trial ju ent"&belief in his findings, is not challengllengeableeable on appeal under the Ram BRam Bali  doctrine; it is however cngllengeable under section 23(1)(a) of the Court of A Act beie general appeal criteriiteria.
>(6) Where the trial judgejudge is sure beyond reasonable doubt, he be ofview that the asse assessors have delivered an uncovenanted verdict. The trial judge is nots not required to speculate where the assessors have gone wrong. He has to instead formulate and act upon his own very positive opinions. See Shiu Prasad
"the assessors gave no reasons as to why they came to their opinions and ituite beside the point what the Judge may have thought had
swayed them one way or another."
(7) Where the assessors and the trial judge are ad on the primary fact facts and the trial judge has left alternative charges to the
assessors leaving them to give their opinion on which mens rea in the ac is dpplicable, hee, he must defer to their opinion. In thiuation
if the judge convictnvicts he may not describe his reason(s) as "co. But if he does an appe appeal court, in applying the;
(9) On appeal to an appellate court the only legality for allowing or dismissing an appeal is section 23(1)(a) and the common law
Ram Bali&#oct;doctrine. But if the trial judge has acted in accordance with this summary, the scope for appellate interference under
[74] I74] It does not appear from the Supreme Coudgments in Lautabui abui v State [200SC 7; CAV0024.2008 (6 F (6 February 2009), Ram v State [2012] FJSC 12; CAV0001.2011 (9 May 2012), Chandraټv State Ą[ FJSC 32; CAV21.2015.2015 (10 December 2015), Baleilevuka v State [2019] FJCA 209; AAU58.2015 (3 October 2019) and Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020)] that the ‘perversity’ of the assessors’ opinion had been insisted upon or even considered as a basis for the trial judge to overturn their decision.
[75] Therefore, in my view for a trial judge to disagree or overturn the assessors’ opinion such opinion need not necessarily be perverse. Needless to say that a trial judge is most likely to overturn a perverse opinion but ‘perversity’ is not a prerequisite or a condition precedent to the trial judge to disagree and overturn the assessors’ opinion.
[76] I undertook some analysis of past several decisions of the Supreme Court and the Court of Appeal in the face of a similar ground of appeal taken in this appeal in Manan v State [2020] FJCA 157; AAU0110.2017 (3 September 2020) and Waininima v State [2020] FJCA 159;AAU0142 of 2017 (10 September 2020) followed by a few other rulings. I do not intend the repeat the same exercise here. However, my conclusions were subsequently summarized in State v Mow [2020] FJCA 199; AAU0024.2018 (12 October 2020) and several other rulings.
Bandara, JA
[77] I have read the draft judgment of Gamalath JA and agree with his conclusions that the appeal should be dismissed. However, I agree with Prematilaka JA with regard to the matter of law addressed in his judgment.
Orders of the Court
........................................................................
Hon. Justice S. Gamalath
JUSTICE OF APPEAL
.............................................................................
Hon. Justice C. Prematilaka
JUSTICE OF APPEAL
........................................................................
Hon. Justice W. Bandara
JUSTICE OF APPEAL
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