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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 043 of 2016
[In the High Court at Lautoka Case No. HAC 41 of 2014]
BETWEEN:
TIMOCI KURIVORA
Appellant
AND:
STATE
Respondent
Coram: Gamalath, JA
: Prematilaka, JA
: Bandara, JA
Counsel: Mr. M. Fesaitu for the Appellant
: Mr. S. Babitu for the Respondent
Date of Hearing: 03 February 2022
Date of Judgment: 03 March 2022
JUDGMENT
Gamalath, JA
[1] I have read in draft the judgment of Bandara, JA and agree with the reasons and the conclusion.
Prematilaka, JA
[2] I agree with the conclusions and orders proposed by Bandara, JA.
Bandara, JA
[3] The Appellant stood trial in the High Court at Lautoka on a single count of rape contrary to section 207 (1) and (2) (b) and (3) of the Crimes Act of 2009. Following the trial the assessors had returned with mixed opinions with the majority of the assessors having opined that the Appellant was not guilty of rape whilst the minority opined that the Appellant was guilty of rape. The Learned Trial Judge having overturned the majority opinion of the assessors convicted the Appellant on the count of rape and sentenced him to 10 years imprisonment with a non-parole period of 5 years imprisonment.
[4] Being aggrieved by the said conviction the Appellant appealed to this Court.
[5] The information against the Appellant read as follows:
‘First Count
Representative Count
Statement of Offence
RAPE: Contrary to Section 207(1) and (2) (b) and (3) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
TIMOCI KURIVORA on the 1st of March 2014 and the 18th of March 2014 at Sigatoka, in the Western Division, penetrated the vagina of ET (name suppressed), a 7 year old girl with his finger.’
[6] The conviction against the Appellant arose from the following factual context:
The main witness for the Prosecution was the victim ET, who was eight years old, and a class 4 student at the time she gave evidence before the High Court. Her father and the mother were separated at the time of the offence. The mother was in a de facto relationship with the Appellant and was living together with him. The victim was staying at Laselase Village with her mother Luisa, the Appellant’s cousin Sia, Aunty Amelia (the witness called by the Court), her brother Issac and Danny. The victim’s mother worked at the Fijian Resort and she often had to work on night shifts. The victim referred to the Appellant as ‘Bee’.
[7] When her mother went to work on her night shifts, the victim used to go to bed in Appellant’s room (most of the time after
watching movies and having dinner). There was only one bed in the room and the victim slept on it, whilst the Appellant slept on
the floor. On one such occasion when the mother of the victim had gone to work on a night shift the Appellant had “touched her lolo” (she referred to her private part as lolo). In the course of giving evidence the victim had demonstrated with her hand how the offensive touching was done. The demonstration
done was described by the Learned High Court Judge in his judgment in the following manner:
‘She made a loop using her index finger and the thumb of the left hand and inserted her middle and index finger of the right hand into the loop’
[8] The victim also said that the experience was painful to her. The medical expert who examined the victim following the complaint, had opined that the victim’s ‘hymen was not intact’ and ‘the perforation of the hymen was suggestive of penetration by a blunt object’ consistent, with the history given by her.
[9] The Appellant had chosen to give evidence and stated that he came to live with the mother of the victim Luisa, since the latter was afraid of her husband and wanted him to be with her. He also said that he was in a relationship with Luisa and treated her children as his own. Appellant further said that Amelia had become antagonistic towards him after she was caught red-handed by bringing a boy to the house. She also had not been happy with the rule he brought in asking everybody to be at home before 8 pm. The Appellant denied sleeping with the complainant at any time, though he was a father figure to her. He also denied having inserted his finger into the victim’s vagina.
[10] Defence called the mother of the complainant as it’s witness. She testified that she brought the Appellant over to her rented house after a DVRO was issued against her husband. Appellant treated her children well, so much so that they were reluctant to go with their father when the latter came along with the police to take the custody of them. The victim had run to the Appellant crying, seeking protection. However, obeying the order she had allowed the children to be taken away. She had cared very deeply for the Appellant and trusted him. As regards to the victim the witness said she was a good and truthful child.
[11] The identity of the Appellant, the age of the victim and the fact that the Appellant had lived together with the victim’s family between 1st of March 2014 and 18th of March 2014, were agreed facts in the trial.
Principal appellate issue of the case
[12] After the Prosecution closed its case, the Court called for the defence and the Appellant chose to give evidence. At the conclusion of the Appellant’s testimony, but before the closure of the defence case, upon the application of the Prosecution, the Court decided to call witness Amelia as a witness of the Court allowing both parties to cross examine her. The said procedure was followed by the trial Judge pursuant to section 116 of the Criminal Procedure Act.
[13] Amelia was a witness listed by the prosecution. During the pendency of its case the State failed to call her to testify since she had been untraceable to serve summons. Being a witness of the Court Amelia testified that, on the 8th of March 2014, she came home after a meeting around 2 am and went straight to bed. She had been surprised to see the victim awake at that hour of the night. When witness woke up around 7am she found the victim had not slept at the place where she was supposed to sleep. The victim had been sleeping in the room with the Appellant where the Appellant and Luisa normally slept and a single blanket had covered the bodies of both the Appellant and the victim. Therefore she questioned the victim as to why she was lying down in that room.
[14] Amelia being worried about the well-being of the children informed the father of the children Afroz about what was happening, which led to the matter being reported to the police. Under cross examination Amelia denied the allegation of bringing a boy into her room and also making up a story to frame the Appellant so that Afroz could get the custody of the victim.
Consideration of the grounds of appeal
[15] The Appellant had advanced four grounds of appeal before the Single Judge of Appeal. The Single Judge granted leave to appeal only on ground one which reads follows:
‘THAT the Learned Trial Judge erred in law and in fact in allowing prosecution’s application after the State had already closed its case, to call Amelia Heritage as a prosecution witness to give evidence when the requirement contrary to section 234 of the Criminal Procedure Act is not met.’
[16] An amended notice of appeal was filed by the Defence on the 10th January 2021 laying out an additional ground of Appeal which reads:
‘THAT the Learned Trial Judge erred in law and in facts in convicting the appellant having not provided cogent reasons when disagreeing with the majority opinions of the assessors.’
[17] Both the foregoing grounds of appeal were advanced before this Full Court. As previously mentioned after the prosecution had closed its case and when the defence case was in progress, Amelia, a witness listed by the prosecution was called by Court on the application of the State pursuant to section 116 of the Criminal Procedure Act. The reason adduced by the prosecution for it’s failure to call the witness at the appropriate stage of the trial was due to the fact that she had not been traceable at the time to serve summons.
[18] The Learned High Court Judge using his powers conferred under section 116 of the Criminal Procedure Act had summoned and examined Amelia as a witness of Court, and allowed both parties to cross examine her.
[19] Section 116 of the Criminal Procedure Act 2009 reads;
“116.-(1) At any stage of trial or other proceeding under this [Act], any court may –
(a) summon or call any person as a witness; or
(b) examine any person in attendance though not summoned as a witness; or
(c) recall and re-examine any person already examined – and the court shall summon and examine, or recall and re-examine any such person if the evidence appears to the court to be essential to the just decision of the case.
(2) The prosecution or the defence shall have the right to cross-examine any person giving evidence in accordance with sub-section (1), and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of any such person as a witness.”
[20] Setting out the reasons in justification of his decision to call Amelia as a witness of the Court, the Learned High Court Judge in his judgment states the following:
“22. Amelia was not available for the Prosecution to call her in time despite her name was listed as a Prosecution witness. Prosecution closed the case without calling Amelia. Prosecution was so sure that it is capable of convincing this Court and proving the charge against the Accused without calling Amelia as a witness. Evidence presented through the Complainant proved that the thinking of the Prosecution was right.
23. However, I allowed the belated application of the Prosecution to call Amelia as a witness to ensure that the truth is further ascertained and justice prevailed.”
[21] The Court record bears the fact that the calling of Amelia as a witness had been done pursuant to section 116 of the Criminal Procedure Code, and not under section 234 of the same as claimed by the Defence in it’s first ground of appeal.
[22] It clearly appears that the Learned High Court Judge using his powers conferred under section 116 to call any person at any stage of trial had, proceeded to call Amelia as a witness and examined her since the latter’s evidence appeared to him, to be essential in achieving a just decision of the case. The judge had not fallen into error by resorting to the impugned procedure, and hence I find that the first ground of appeal is unmeritorious.
Consideration of the 2nd Ground of Appeal
[23] The conviction against the accused had been entered on the 28th September 2015. Ruling of the single Judge of Appeal was made on the 24th May 2019. An amended notice of appeal was filed by the Legal Aid Commission on the 10th of February 2021, laying out a fresh ground of appeal raised for the first time which reads;
‘THAT the Learned Trial Judge erred in law and in facts in convicting the appellant having not provided cogent reasons when disagreeing with the majority opinions of the assessors.’
[24] An application for the enlargement of time to appeal against a conviction can be made under section 26 (1) of the Court of Appeal Act 1949 which reads:
“26.-(1) Where a person convicted desires to appeal under this Part to the
Court of Appeal, or to obtain leave of that Court to appeal, he shall give
notice of appeal or notice of his application for leave to appeal in such
manner as may be directed by rules of Court within [30] days of the date
of conviction [or decision]. Except in the case of a conviction involving
sentence of death, the time, within which notice of appeal or notice of an
application for leave to appeal may be given, may be extended at any time by the Court of Appeal.”
[25] In Rokete v State AAU0009 of 2014: 7 March 2019 of [2019] FJCA 49, the Court of Appeal reiterated the observations of the Supreme Court in Tuwai v State CAV0015: 26 August 2016¦ [2016] FJSC 35 wit was held:
‘82. It is ier thtigants be allowellowed to argue their cases on piece meal meal basis. Once a set of appeal grounds are unsuccessful, they raise anotet to test whether that wilt will hold some substance. If stringent rules are not applied where necessary, there will never be an end to litigation and there can be huge disruptions to case management in the appellate court.
[26] The Court of Appeal then remarked in Rokete:
‘[9].......Grounds 11-13 are the same as 01-03 grounds urged at the leave stage and the rest are completely fresh grounds of appeal. However, I am constrained to reiterate the sentiments expressed by the Supreme Court in Tuwai v State[2016C 35 with regard to totally new set of grounds of appeal being brng brought before the Full Court which, I belies advanced more in desperatperation than in conviction. Time and resource of any appellate court are too precious to be sacrificed for such an exercise.’
[27] The principles to be considered when granting an enlargement of time have been well established by the case law, which are as follows:
(i) The reason for the failure to file within time;
(ii) The length of the delay;
(iii) Whether there is a ground of merit justifying the Appellant’s counts;
(iv) Consideration where there has been substantial delay nonetheless is there a ground of appeal that will probably succeed; and
(v) If time is enlarged will the Respondent be unfairly prejudiced. [Eddie MacCaig v Abhi Manu [2012] FJSC 18; CBV 0002.2012 (27 August 2012)]
[28] From the circumstances of the present case it appears that only principles (iii) and (iv) above specifically the test of “real prospect of success” that warrant consideration. It goes without saying that the ground raised should be so meritorious that it must carry a real prospect of success. (vide: Nasila v State [2019] FJCA 84; AAU 0004.2011 (6 June 2019)).
[29] Section 237 (4) of the Criminal Procedure Act 2009 provides that;
“When the judge does not agree with the majority opinion of the
assessors, the judge shall give reasons for differing with the majority
opinion, which shall be–
(a) written down; and
(b) pronounced in open court.”
[30] The principle underlying the above provision is well established by the case law and in Johnson v State [2013] FJCA 45; AAU 90.2010 (30 May 2013) the Court of Appeal has stated the following:
“[23] The principles relating to the overturning a verdict of the Assessors by the trial Judge as set out in S.299 of the CPC were laid down by the Supreme Court in Lautabui v State&#/b> [2009] FJSC 7; CAV0024.2008 (6 February 2009).
28] 9 of the CPC reco recognizes that a judge has the power andr and authority to disagree with the majority opinion of the Assessors. When the judge disagrees with the assessors his or her reasons are deemed to be the judgment of the Court. However, the judge's power and authority in this regard is subject to three important qualifications.
[29] First, the case law makes it clear that the judge must pay careful attention to the opinion of the assessors and must have
"cogent reasons" for differing from their opinion. The reasons must be founded on the weight of the evidence and must reflect the
judge's views as to the credibility of witnesses: m Bali v. Regina> [1960] FLR 80 at 83i CA), affirmed <160;
[31] In Saukuru v Reginam [1981] FijiLawRp 21; [1981] 28 FLR 6 (27 November 1981) it was held that:
“....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. As to the first we consider this...a case in which...............a mere summation of the evidence was insufficient...”
[32] In Kumar v State; AAU 102 of 2015 (29 April 2021) it has been held that:
“[24] However, it must always be kept in mind that in Fiji the assessors are not the sole judges of facts. The judge is the sole judge of fact in respect of guilt and the assessors are there only to offer their opinions, based on their views of the facts and it is the judge who ultimately decides whether the accused is guilty or not [vide; Rokonabete v State [2006] FJCA 85; AAU 0048.2005 (22 March 2006) Noa Maya v The State [2015] FJSC 30; CAV 009 of 2018 (23 October 2015) and Rokopeta v State [2016] FJSC 33; CAV0009, 0016, 0018, 0019. 2016 (26 August 2016). Therefore, there is a second layer of scrutiny and protection offered to the accused against verdicts that could be unreasonable and cannot be supported having regard to the evidence.”
[33] Upon a perusal of the court record, it appears that the Learned High Court Judge in his judgment had amply given cogent reasons running into 7 pages and 44 paragraphs.
[34] The Learned High Court Judge in paragraphs 10 – 13, 15 and 21 of the judgment deals with the issue of the credibility of the victim in the following manner:
“10. Complainant was eight years old and she appeared intelligible and was competent to give evidence.
“21. In my judgment, Complainant’s evidence is credible and believable. In some cases, the court may warn itself about the inherent dangers of convicting an accused on the unsupported evidence of a particular witness. I do not consider complainant in this case to be one such witness. Her evidence reads coherently and I consider that I am entitled to accept her evidence without support. Her evidence alone is sufficient to bring about a conviction of rape. (see: Kamalesh Prasad Goutam v State (HAA 033 of 2007 per Shameem J.)”
[35] In paragraph 23 of the judgment the Learned High Court Judge sets out reasons for his decision to call Amelia as a witness of Court.
“23. However, I allowed the belated application of the Prosecution to call Amelia as a witness to ensure that the truth is further ascertained and justice prevailed.”
[36] Analysing the evidence of witness Amelia in paragraphs 25 – 28, the Learned High Court Judge observes that:
“25. I am convinced that Amelia told the truth and with her evidence, the Prosecution case was further bolstered. She was not a readily available witness for the Prosecution. If Amelia was complicit with complainant’s father, Afroz in fabricating a story against the Accused, she would have been an enthusiastic witness for the Prosecution. But, She could not be traced and the Prosecution managed to secure her attendance only at the tail end of the trial. It tends to show that she is not an interested witness as far as the Prosecution case was concerned.
[37] In paragraph 42 of the judgment the Learned High Court Judge observes that:
“42. I am satisfied that the majority opinion of the Assessors is perverse. As per the directions given in my Summing Up, they were not justified in coming to an opinion of not guilty to the Counts of Rape. I reject the majority opinion of the Assessors.”
[38] The foregoing reasons and others set out in the judgment of the Learned High Court Judge, are cogent enough to meet the standards set by both statutory and common law on the impugned issue. In the circumstances I hold that the second ground of appeal lacks merit and has no real prospect of success.
[39] In Sahib v State [1992] FJCA 24; AAU 0018u. 87s (27 November 1992), it has been held that:
“It has been stated many times that the trial Court has the considerable advantage of having seen and heard the witness. It was in a better position to assess credibility and weight and we should not lightly interfere. There was undoubtedly evidence before the Court that, if accepted, would support such verdict. We are not able to usurp the functions of the lower Court and substitute our own opinion.”
[40] In Sharma v State; [2017] FJSC 5; CAV 0031.2016 (20 April 2017) the Supreme Court of Fiji observed at paragraph 38, under what circumstances an Appellate Court should disturb the findings of an original Court:
“38. ...In addition the trial judge would have had the benefit of observing the demeanour and the deportment of the witnesses before deciding to act on the evidence. As such I am of the view that this court ought not to disturb such findings unless the petitioner is capable of establishing a grave miscarriage of justice had occurred.”
[41] For the foregoing reasons I see no reason to interfere with the findings of the High Court.
Orders
Hon. Mr. Justice S. Gamalath
JUSTICE OF APPEAL
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
Hon. Mr. Justice W. Bandara
JUSTICE OF APPEAL
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