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Daulako v State [2022] FJSC 10; CAV0014.2019 (28 April 2022)

IN THE SUPREME COURT OF FIJI
[CRIMINAL APPELLATE JURISDICTION]


CRIMINAL PETITION No: CAV 0014 of 2019
[On Appeal from Court of Appeal No: AAU 0092 of 2015]


BETWEEN:


ESEKAIA DAULAKO
Petitioner


AND:


THE STATE
Respondent


Coram : Hon. Mr. Justice Kamal Kumar, President of the Supreme Court
Hon. Mr. Buwaneka Aluwihare, Judge of the Supreme Court
Hon. Mr. Justice Priyasath Dep, Judge of the Supreme Court


Counsel: Mr. M. Fesaitu with Ms. L. Manulevu for the Petitioner

Mr. S. Babitu for the Respondent


Date of Hearing: 12 April 2022


Date of Judgment: 28 April 2022


JUDGMENT


Kumar, P


  1. I agree with reason and Judgment of His Lordship Justice Aluwihare.

Aluwihare, J


  1. The Petitioner is presently serving a sentence of 15 years of imprisonment for having been convicted on two counts of Rape. The 1st count was a representative count, contrary to section 207(1) and (2) (a) of the Crimes Act 2009 and the other, contrary to section 207(1) and (2) (b) of the Crimes Act. The Petitioner now seeks special leave to appeal from this court on the following grounds of appeal.
(iii) That the Court of Appeal erred in not considering that the non-parole period is close to the head sentence; depriving the Petitioner of his entitlement to one-third remission, consequent to the Corrections Service (Amendment) Act of 2019.

Jurisdiction of the court

3. Section 98 (3) (b) of the Constitution of the Republic of Fiji lays down that: -

“The Supreme Court has exclusive jurisdiction, subject to such requirements as prescribed by a written law, to hear and determine appeals from all final judgments of the Court of Appeal”.

Further, section 98 (4) of the Constitution stipulates that “an appeal may not be brought before the Supreme Court from a final judgment of the Court of Appeal unless the Supreme Court grants leave to appeal”.


  1. Section 7 (2) of the Supreme Court Act of 1998 sets down the threshold which a party seeking special leave in a criminal matter has to meet. Section 7 (2) of the Supreme Court Act reads thus;

“In relation to a criminal matter, the Supreme Court must not grant special leave to appeal unless;

(a) A question of general legal importance is involved.

(b) A substantial question of principle affecting the administration of

criminal justice is involved.

(c) Substantial and grave injustice may otherwise occur.


Background facts


  1. During the course of the evidence it transpired that the Petitioner, though not a family member, was an inmate of the house of the victim at the time relevant to the alleged incidents. According to the victim who was a girl of 13 years of age at the time, on a day in February 2014, the Petitioner had approached her while she was sleeping with her siblings and the Petitioner had inserted his finger into her vagina and this had continued for several days. Then, on a day in the following month [March], the victim had alleged, that she was subjected to penile penetration by the Petitioner.
  3. The position of the victim was that, due to fear she entertained towards the Petitioner, she did not divulge the incidents referred to anyone but somewhere in July the victim intimated to her mother of the incidents as she could no longer tolerate the conduct of the Petitioner. It was then, that a complaint was made to the police and an investigation was initiated.
    1. There is no requirement, as the law stands today, for the victim to convey to another of the incident complained of. However, the mother of the victim in her testimony had corroborated the victim [in the context of consistency] and had stated that her daughter conveyed to her the nature of the sexual harassment she had to face in the hands of the Petitioner. It appears that the version given by the victim in her testimony before the High Court and the version given to her mother are consistent
    2. One of the contentions of the Petitioner is that there was inadequate directions on the part of the learned trial judge to the assessors regarding the medical evidence led at the trial. Therefore, it is necessary to consider the evidence of the medical officers Nitik Ram as well as of Tamanitokula who was a defence witness. According to the Medical Examination Form [D2], the medical officer, upon examination of the victim had noted in her report; ‘absence of Hymen margins’. In her evidence Nitik Ram had stated that the hymen was not intact and there had been some form of penetration. Under cross examination, it had been put to the witness as to whether a man’s sexual function could be impaired when that person is labouring under hernia., The medical officer in response had stated that hernia would not affect ‘erection or ejaculation’.
    3. The Petitioner on the other hand, had denied the allegation and stated that he remains a bachelor because he had been suffering from hernia since 2011. However, he had also admitted that he has no medical records to establish that fact.
  4. Epi Tamanitokula, who had been summoned to testify on behalf of the Petitioner, has stated that he examined the Petitioner in October 2014. He has stated in his evidence that the Petitioner gave his history of suffering from Inguinal [hernia] for a period of 5 years. Under cross examination he had expressed the view that, although uncomfortable, the Petitioner was capable of having sexual intercourse.
  5. All three assessors were unanimous in their opinion that the Petitioner was guilty of both counts. The learned trial judge had referred to the medical evidence placed before the court on behalf of the Petitioner in his summing up. The learned trial judge had cautioned the Assessors that the Petitioner does not have to prove anything and that if they [the assessors] think that what the Petitioner had said was true, then they must find him not guilty.
    1. It is entirely within the province of the assessors, as judges of fact, to decide which evidence should be accepted, the weightage that should be attached to a testimony, the extent to which such evidence could be considered as credible and whether a testimony of a witness could be acted upon in arriving at their decision. As such, had the learned trial judge given any specific directions with regard to the medical evidence favourable to the Petitioner, it would have amounted to usurpation of the functions of the assessors .
    2. On the other hand, the Petitioner’s purported discomfort in having sexual intercourse, would have had no bearing on the allegation that the Petitioner had inserted his finger into the victim’s vagina. The evidence of the victim was that the occasions where the Petitioner had inserted his penis into her vagina, had lasted only five to six seconds.
    3. Considering the totality of the evidence led at the trial, I am of the view that, it was not necessary for the learned trial judge to give a specific direction to the assessors on the impact of the medical condition of the Petitioner on performing of the alleged act. Therefore, the assertion that the learned trial judge’s directions were inadequate, is bereft of any merit. Accordingly, I hold that the Petitioner had failed to meet the criteria set down in section 7(2) of the Supreme Court Act for granting special leave to appeal regarding the first ground of appeal.
    4. In any event, the medical evidence and cogent evidence placed before the court by the lay witnesses which remained unshaken lend credence to the version of the prosecution. Therefore, even if there had been an inadequacy of directions, it would not have affected the final outcome.
    5. The second ground of appeal raised by the Petitioner is that the court of appeal misdirected itself by relying on the moribund decision in Raj v. State [supra], when the said decision has been overruled by Naicker v. State [supra]. This was with regard to the issue of redirection.
    6. The High Court record reflects that at the end of the summing up, the learned trial judge had inquired from both the learned counsel representing the Petitioner and the State, whether there was any necessity for redirections. However, neither party had sought a re-direction.
    7. It must be pointed out that their Lordships of the Court of Appeal, in deciding the issue of re-direction, had not relied on Raj v. The State [supra]. The Court of Appeal, had referred to another decision, named Abdul Khair Mohammd Islam [1997] 1 Cr. App. R. 22, which has been cited in the case of Raj v. The State.
    8. In Abdul Khair Mohammd Islam [1997] 1 Cr. App. R. 22 Buxton LJ had observed:

“We are told that before speeches, and very usefully and properly, in accordance with the practice repeatedly urged by this Court, counsel discussed with the judge any particular directions that he should give to the jury. It was apparently agreed that he should remind the jury of the particular, and limited, nature and effect of the complaint evidence. In the event, however, no such direction was given. At the end of the summing-up neither counsel reminded the judge of that omission.” [Emphasis added] In the case referred to, however, the issue was not pursued as both parties were of the view that the issue in question had not arisen the way it had come up in the appeal. Buxton LJ went on to observe; “Mr Davies for the prosecution frankly agreed that if he had had the issues that have arisen in this appeal as clearly in mind as they now are he would indeed have intervened. The exact nature of the point may not have been clearly apparent because, we understand, the discussion before the judge had focused on the effect on complaint evidence of the abolition of the corroboration rules and the subsequent guidance given in that connection by this court in Makuanjola [1995] 2 Cr App R 469. “When one considers the non-directions complained of by the Petitioner, it cannot be said in my view, fall into the exception referred to in the case of Abdul Khair Mohammd Islam [supra].


  1. The learned counsel for the Petitioner had drawn our attention to Anand Abhay Raj v, The State FJSC 12; CAV 0003.2014, where Chief Justice Gates has observed; “The raising of direction matters in this way is a useful trial function and in following it, counsel assist in achieving a fair trial. In doing so they act in their client’s interest. The appellate courts will not look favourably on cases where counsel have held their seats, hoping for an appeal point, when issues in directions should have been raised with the judge. We do not believe this was intended in this case.”
  2. The observation referred to above is very much relevant to the facts and circumstances of the case before us. The Petitioner asserts, that the decision of the case of Raj v the Sate [supra], is no longer valid and invites this court to apply the rationale that had been followed in the case of Naicker v. State CAV19/ 2017.
  3. Ironically, in Naicker [supra], Keith J has cited with approval the aforesaid observation made by Gates CJ in the case of Raj [supra]. Keith J. has made that observation in response to the Petitioner’s contention in the Naicker’s case, that there were certain shortcomings of the trial judge’s summing up. In view of the submissions made before us on this point, it is very much appropriate to reproduce the observations made by Keith J in Naicker [supra].

“There is one final observation I should make. There has been much criticism of the judge’s summing-up in this case. Counsel for the State, Mr Andrew Jack, reminded us that trial counsel did not ask the judge at the end of the summing-up to correct anything he had said. The importance of counsel pointing out any errors which the judge may have made – respectfully but nevertheless firmly – was stressed by Gates, J in Raj v The State [2014] FJSC 12 at para 35: “The raising of direction matters... Is a useful trial function and in following it, counsel assists in achieving a fair trial. In doing so they act in their client’s interest. The appellate courts will not look favourably on cases where counsel has held their seats, hoping for an appeal point, when issues in directions should have been raised with the judge.” But what should the consequences be in a case such as the present one where counsel does not draw the judge’s attention to errors in the summing-up which could be exploited on appeal? The answer was given by Gates P in Raj at para 30 when he said that the “omission is in itself usually sufficient to disregard” the ground of appeal (emphasis supplied). So usually, not always, and that really only applied to those cases in which the omission had been deliberate with counsel sitting on their hands in order to preserve a point for the Court of Appeal.


  1. Having made the observations referred to above, Keith J had proceeded to hold that; “Litigants must not wait for trial judges to make mistakes to find a point of appeal. The transparent nature of litigation requires that the trial judge be given an opportunity to correct any errors made. If the trial judge has asked parties to seek re-directions and they do not and subsequently raise the issue in the appellate Court then in the absence of any cogent reason, it should be held against that party as having employed a deliberate tactic to find an appeal point.”
  2. I find that the decision in Naicker [supra] is consonant with the decision in the case of Raj [supra]. Accordingly, I hold that the contention raised by the Petitioner relating to misdirection [second ground of appeal] is bereft of any merit.

3rd Ground of Appeal


  1. It was argued on behalf of the Petitioner that the non -parole period is close to the head sentence, and the period of the sentence imposed, deprives the Petitioner of benefiting from the provisions of the Corrections Service (Amendment) Act No. 29 of 2019 [hereinafter referred to as the “Amendment”].
  2. At the time the petitioner was sentenced by the High Court and at the point his conviction and sentence was affirmed by the Court of Appeal, the Corrections Service (Amendment) Act had not come into force. By virtue of Section 2(5) of the Amendment, however, the Amendment is applicable to sentences that had been imposed anterior to the amendment Act coming into force, as well as prospective sentences.
  3. The learned trial Judge imposed a sentence of 15 years imprisonment for each of the representative count of penile rape and for the second count of digital rape., Both terms of imprisonment are to run concurrently with a non-parole period of 12 years. In doing so, the learned trial judge had relied on the criteria laid down in the case of Anand Abhay Raj v The State CAV003of 2014 where it has been held that the tariff for child rape is between 10 to 16 years.
  4. The learned counsel for the Petitioner drew the attention of this court to section 2(3) of the Amendment and submitted that by virtue of that provision, the Petitioner would be entitled to a remission of one- third of the sentence and he would become eligible to be released after serving a 10-year term of imprisonment. His contention was that in view of the non-parole period of 12 years, the Petitioner is deprived of getting the benefit of the Amendment.
  5. Before dealing with the argument of the learned counsel for the Petitioner, I wish to refer to the decision of this court in the case of Nacani Timo v. The State CAV 0022 of 2018, [hereinafter referred to as ‘Timo’] which put to rest any ambiguity or dilemma regarding how a non-parole period relates to the remission of the sentence.
  6. Section 27(2) of the Corrections Service Act 2006, as it stood before the 2019 amendment, stipulated that: “For the purposes of the initial classification a date of release for each prisoner shall be determined which shall be calculated on the basis of a remission of one-third of the sentence for any term of imprisonment exceeding one month.” [emphasis added]. The practice, however, had been to calculate the remissions taking into account the non-parole period fixed by the court, although that ought not be a factor in granting remissions.
  7. In the case of Paula Tora v. The State FJSC 23; CAV11.2015, the Court observed that, “It must also be recalled that the current practice of the Corrections Department, in the absence of a parole board, is to calculate the one third remission that a prisoner may be entitled to under section 27 (2) of the Corrections Service Act 2006 on the balance of the head sentence after the non-parole term has been served.” [emphasis added]
  8. Justice Gates in the case of Timo, having observed that, “The dilemma of how the non-parole period is to be ordered in a sentence of imprisonment and how it relates to the remission of that term, an administrative matter, has troubled both serving prisoners and the courts, had proceeded to hold that “There is no support in the Corrections Legislation for the present administrative decision to apply remission only to the remaining post non-parole term of the sentence of imprisonment. The written law as it has been passed by Parliament is to be applied”.
  9. In my view, all what the 2019 amendment [to the Corrections Service Act] did was to give statutory recognition to the pronouncement made by the Supreme Court in the case of Timo and to clarify as to how the remissions are to be applied to a sentence. The new subsection (3) that was added to section 27 of the Corrections Service Act 2006, stipulates that “for the purpose of initial classification, the date of the release for the prisoner shall be determined on the basis of a remission of one-third of the sentence not taking into account the non-parole period” [emphasis added] . This makes it clear that the non-parole period is not a factor to be considered when granting remissions.
  10. Accordingly, the remissions granted to a prisoner will have no impact on the non-parole period fixed by the court, and he/she would not be entitled to be released before the expiry of that period. Subsection (4) added to section 27 of the Corrections Service Act, consequent to the amendment, reads thus; “For avoidance of doubt, where the sentence of a prisoner includes a non-parole period fixed by a court in accordance with section 18 of the Sentencing and Penalties Act 2009, the prisoner must serve the full term of the non-parole period. [Emphasis added].
  11. As far as fixing the non-parole period is concerned, the judicial officers are required to adhere to the statutory provisions embodied in section 18 of the Sentencing and Penalties Act of 2009. The provisions of the Corrections Service Act 2006 have no bearing on this aspect.
  12. In conclusion, I wish to reiterate that as the law stands today; save and except sentences that are two years and less, without exception, the courts are required mandatorily to fix a non-parole period.
  13. It was argued in this case that the head sentence imposed was too close to the non-parole period fixed, which were 15 years and 12 years respectively. Considering the facts and circumstances of the instant case, I cannot agree with the above contention of the learned counsel for the Petitioner. To achieve the objectives of the Sentencing and Penalties Act 2009, however, courts must pay close attention to maintain an appropriate gap between the head sentence and the non-parole period that commensurate with the length of the prison term imposed.
  14. Accordingly, I see no basis to grant special leave on the third ground of appeal as well.
  15. For the reasons set out above, the petitioner had not met the threshold set out in Section 7(2) of the Supreme Court Act and this Court sees no reason to grant Special Leave to Appeal.

Dep, J


  1. I have read in draft the judgment of Aluwihare, J and I agree with his reasoning and conclusions.

The Orders of the Court are:


  1. Special leave to appeal is refused
    1. The Judgment of the Court of Appeal is affirmed
  2. The conviction and sentence imposed by the High Court will stand.



Hon. Mr. Justice Kamal Kumar

President of the Supreme Court


Hon. Mr. Justice Buwaneka Aluwihare

Judge of the Supreme Court


Hon. Mr. Justice Priyasath Dep

Judge of the Supreme Court


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