Cama v The State [2003] FJHC 212; HAM0028D.2003S (15 August 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CASE NO: HAM0028 OF 2003

Between:

TIMOCI CAMA
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in Person
Mr. D. Prasad for Respondent

Hearing: 8th August 2003
Ruling: 15th August 2003

RULING

The Appellant was convicted on one count of Rape on the 27th of March 2001 after a trial. He was convicted of raping his mother in the presence of his sister, on 13th October 2001 at Navua. He sent a letter of appeal to the Suva Magistrates’ Court, which did not arrive until two days after the end of the 28-day appeal period. The learned Magistrate refused to grant leave extending the appeal period on the ground that no good grounds were shown.

More than a year later, on the 1st of July 2003, he applied to the High Court for extension of time. He is unrepresented, and a serving prisoner. I have therefore treated this application not as an application to enlarge time but as an appeal from the Magistrate’s refusal to enlarge time.

The facts of the case were that on the 13th of October 2001, the Appellant’s mother was at home with her daughter and two grandchildren when the Appellant came home at about 5 a.m. He lay on the floor and asked his mother to massage him. He then raped her telling her not to make any noise or he would chop her throat. This was witnessed by her daughter (PW2) who reported the matter to police. The victim was examined by a doctor who was unable to find any evidence of rape but who said that she was distressed. Whilst giving evidence, the victim was weeping and distressed. The Appellant was interviewed under caution but he said that he could not recall what had happened because he was drunk.

In his judgment the learned Magistrate correctly directed himself on the need for corroboration and found such corroboration in the evidence of the Appellant’s sister. He said he was satisfied of the Appellant’s guilt beyond reasonable doubt and sentenced him to 5 years imprisonment, the longest he could give.

The application to enlarge time

There is nothing in the record to show that the accused was heard at the hearing of the application to enlarge time. As Gates J said in William Rosa Junior –v- State Misc. Action HAM006.2003, natural justice, and the right to open justice require that such an application be heard in open court and that both parties be heard.

However, the Appellant was heard in open court at the hearing of this appeal. He was unable to articulate any grounds of appeal other than to say that the medical evidence proved his innocence, and that he should have been convicted within 5 months of the commission of the offence. His written letter of appeal is difficult to understand and does not disclose any matters of law or fact in relation to the trial and sentence. It is difficult therefore to establish the exact nature of his complaint. Certainly, his grounds as articulated in court, are bound to fail.

However, I have perused the original court file carefully, and am unable to discover any cause for complaint. The evidence of the victim and her daughter was clear, and the Appellant chose not to cross-examine either. This was despite a careful explanation given to him by the presiding Magistrate, of the importance of cross-examination. The corroboration warning was clear and unequivocal, and the only apparent defence raised was that the Appellant was too drunk to recall what had happened. The facts of the case do not lend themselves to a possible defence of reasonable belief in consent.

In relation to sentence the Appellant was fortunate to receive a sentence of 5 years imprisonment. Indeed with his list of previous convictions, the case might well have been referred to the High Court for sentence. Further the rape of a 67 year old, and the rape of the Appellant’s own mother are matters so abhorrent to society, that a sentence in excess of 10 years imprisonment might have been justified. However, I cannot now increase a sentence beyond the jurisdiction of the Magistrates’ Court.

There is no apparent merit in this appeal. As such, the learned Magistrate was quite correct to find that that enlargement of time should be refused because no good grounds were shown. Although generally, unrepresented serving prisoners are usually shown latitude by the courts when they are a few days late with their appeals, they must at least show that they have arguable grounds of appeal. No such grounds exist in this case.

The appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
15th August 2003