Marawa v State [2008] FJSC 34; CAV0004.2006 (25 February 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV 0004 OF 2006
(Fiji Court of Criminal Appeal AAU 32 of 2005)

BETWEEN:

NACANIELI MARAWA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Tuesday, 19th February 2008, Suva

Counsel: Petitioner in Person
A Prasad for the Respondent

Date of Judgment: Monday, 25th February 2008, Suva

JUDGMENT OF THE COURT

1. At the conclusion of the hearing the Court announced that this petition would be dismissed and that reasons would be given in writing in due course. Those reasons are now given.
   
2. In April 2004, the petitioner, who was not legally represented, was convicted in the High Court at Suva, after being found guilty of two counts of rape. He was sentenced to two terms of thirteen years imprisonment, wholly concurrent.
   

Factual background

3. The petitioner, who was fifty-one years of age at the time of these offences, is the uncle of the complainant. She was fourteen years of age at the time in question.
   
4. On 22 January 2001, the complainant was sent by her parents from their village to stay with the petitioner and his wife in Suva so that she could attend a particular school. According to the complainant, on 24 January 2001, only two days after her arrival, she returned to the petitioner’s home from school. She went into her room and sat on the bed. The petitioner entered the room, closed the door, and grabbed hold of her hands. He attempted to force her to lie down. When she resisted, he took up a stick and struck her on the back. He then forced her down, and took off her clothes. According to the complainant, he had intercourse with her, without her consent and against her will. The complainant had never previously had sexual intercourse. She claimed that the petitioner threatened to kill her if she told anyone what he had done.
   
5. Several weeks later, on 15 February 2001, the complainant once again returned home from school. She went into her room, and the petitioner came in moments later. She asked him what he wanted. He did not reply. He forced her to lie down. When she resisted he struck her on the cheek. He then made her lie on the floor, took off her clothes and again had intercourse with her without her consent. He threatened to kill her if she told anyone what he had done.
   
6. It is unnecessary, for present purposes, to describe the events that followed. It is sufficient simply to note that the complainant maintained that she was under constant threat from the petitioner that if she revealed what he had done, she would be killed. At various times in the months that followed, the petitioner both threatened her, and assaulted her.
   
7. In mid-July 2001 the complainant was visiting her cousins when one of her aunts noticed her appearance. She asked her whether she was pregnant. The complainant said she did not know. The aunt examined her, and concluded that she was indeed pregnant. She asked the complainant who the father was. The complainant said that it was her uncle, the petitioner. Shortly thereafter the complainant made a statement to the police. That led to a caution interview, on 3 August 2001,hich the petitietitioner denied having had sexual intercourse with the complainant.
   
8. For reasons that are not altogether apparentarent it was not until 10 October 200me fourteen mont months later, that the petitioner was charged with having raped his niece.
   
9. In May 2003, blood samples were take taken from the complainant, and her child, as well as the petitioner. The findings were that the petitioner could not be excluded as the father of the child, but there was no more than a fifty per cent chance of this being the case.
   
10. The petitioner was ultimately brought to trial in April 2004.
    

The proceedings in the Court of Appeal

11. The petitioner sought leave to appeal to the Court of Appeal. It was initially unclear whether he wished to challenge his conviction and sentence, or his sentence only. On 9 June 200 President refused used leave. However, the petitioner applied, pursuant to s 35(3) of the Courtppeal Actl Act Cap 12, to have his application for leave determined by a Full Court. On 26&July 2006 the Court of Appe Appeal granted leave to appeal. Their Lordships were still, at that stage, uncertain as to whether the petitioner wished to appeal against both his conviction and his sentence, or against the sentence only. Presumably that was because although he had formulated grounds of appeal that appeared to question the correctness of his conviction, he also informed the Court that he wished to apologise for what he had done. He said that he knew it was wrong, and against the law.
    
12. In any event, the Court of Appeal did consider the petitioner’s appeal against conviction. It rejected that appeal in the briefest of terms. Their Lordships said simply at [3]:
    

"As the Appellant was representing himself we considered the various points raised by him against his conviction. We are satisfied that each of the matters addressed was either fairly placed before the assessors for their opinion or was not raised at the trial. We can find no fault in the way in which any of these matters was dealt with and accordingly the appeal against conviction fails."

13. The grounds of appeal to which these remarks were addressed were, broadly speaking, that the conviction should be quashed because:
    
    • there was insufficient evidence as to lack of consent,
      
    • there had been delay on the part of the complainant in raising these matters with the police,
      
    • there was no corroboration for the complainant’s evidence, and
      
    • certain evidence relating to the paternity of a child born to the complainant had been wrongly used to establish lack of consent.
      

14. The Court of Appeal dealt at greater length with the appeal against sentence. Their Lordships concluded that the trial judge had given insufficient weight to a number of mitigating factors. These included the petitioner’s age, which at the time of sentencing was fifty-four, and his ill health.

15. The Court of Appeal also noted that although the petitioner pleaded not guilty at his trial, there was no serious challenge made to the complainant’s evidence. Moreover, the petitioner agreed to a thirteen paragraph statement of facts which resulted in the trial being considerably shortened.

16. The Court of Appeal set aside the sentences of thirteen years, and substituted terms of imprisonment of ten years on each count, to be served concurrently.

The application for special leave

17. By letter dated 15 August 2006, and addressed to the Registrar of the Supreme Court, the petitioner signified his desire to appeal against the dismissal by the Court of Appeal of his appeal against conviction. He identified essentially the same grounds as had been raised before the Court of Appeal.

18. By further letter dated 25 September 2006,petitioner sner set out in some detail his submissions in support of this application. There was one minor variation. In his ori letter to the Registrar, he identified "delay in complaining" as a ground of appeal. In hiIn his subsequent letter that was recast as "delay in trial". His grounds of appeal did not challenge the sentences imposed by the Court of Appeal.

19. The petitioner relied upon his written submissions. Ms Prasad, who appeared for the respondent, submitted that there was no substance in any of the grounds of appeal. She further submitted that none of these grounds met the requirements of s 7(2) of the

20. More specifically, Ms Prasad submitted that there was ample evidence of lacconsent. The complainant had testified that the petitioner had forced himself upon her on b on both occasions, without her consent. The petitioner had contended, at trial, that she had willingly engaged in intercourse. The issue was for the assessors to determine. Plainly they had accepted the evidence of the complainant and rejected that of the petitioner. There was no basis for an appellate court to disturb the assessors’ findings.

21. Ms Prasad next subm that the pthe petitioner’s complaint regarding improper use of the evidence of the paternity test was without any basis. The trial judge had correctly did the assessors that the evidence of paternity was of littllittle significance because the petitioner did not deny having had sexual intercourse with the complainant at about the time of conception.

22. With regard to the issue of delay on the part of the complainant, Ms Praubmitted that it was unds understandable that she had not told anyone what the petitioner had done. Her evidence was that her uncle had repeatedly threatened to kill her if she revealed what had occurred. The delay in complaining was a matter that might go to credit, but it was to be weighed by the assessors.

23. As to the petitioner’s complaint that the convictions were unsafe because there had been an unreasonable delay in the hearing of the charges, Ms Prasad submitted that this was not so. The offences were committed in January and February of 2001. As previously indicated, the trial did not take place until April 2004. Section 29(3) of the Fiji Constitution provides that every person charged with an offence has the right to have the case determined within a reasonable time. The petitioner was not charged until October 2002. There then had to be further evidence gathered, including the paternity tests. In the normal course there would have been a committal hearing. However, in the present case the petitioner consented to transfer under the new statutory regime which abolished committal hearings in 2003. In these circumstances, a trial conducted in April 2004, some eighteen months or so after the petitioner was charged could not be regarded as constituting a breach of s 29(3).

24. Finally, Ms Prasad addressed the petitioner’s claim, at least before this Court, that he was "coerced" into being medically tested, and was threatened by the poliat he would be charged if he did not comply. That was simplsimply asserted from the bar table. There was nothing to support the assertion. Ms Prasad submitted that this complaint could not be substantiated, and should be rejected.

25. We concluded that each of Ms Prasad&#8217bmissions shoulshould be accepted. None of the grounds of appeal could conceivably be made out. Moreover, the petition did not raise any question of general legal importance, or any substantial question of principle affecting the administration of criminal justice, as required by ss 7(2)and (b) of the SuSupreme Court Act respectively.

26. It was for these reasons that the Court refused special leave and ordered that the petition be dismissed.

Hon >Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

Solicitors:
The Petitioner in Person
Office of the Director of Public Prosecutions, Suva for the Respondent