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Tawatatau v State [2014] FJCA 134; AAU0060.2013 (1 August 2014)

IN THE COURT OF APPEAL
AT SUVA

CRIMINAL APPEAL NO. AAU0060 OF 2013
(High Court Criminal Action No. HAC 329 of 2011)

BETWEEN:

JOELI TAWATATAU
Appellant

AND:

THE STATE
Respondent

Coram : Chandra RJA

Counsel : Appellant in person.
Ms. S. Prasad for the Respondent

Date of Hearing : 4 June 2014
Date of Ruling : 1 August 2014

RULING

1. This is an application for leave to appeal against conviction and sentence.
   
2. The Appellant was charged with one count of rape contrary to section 207(1) of the Crimes Decree 2009.
   
3. The Appellant was convicted after trial and sentenced to 8 years imprisonment with a non-parole period of 6 years on 7th June 2013.
   
4. The Appellant in his application for leave to appeal has set out the following grounds:
   

"Against Conviction

1. The learned Judge acted unfairly against the Appellant in his summing up at paragraph 26 line 9 to line 10, when he made adverse inference after stating that the defence witness Siteri Gade admitted that she was a serving prisoner.
   
2. The learned trial judge erred in law and in fact when he failed to consider in his judgment that the complainant and the supporting witnesses had been inconsistent and significant material evidence being the alleged bed sheet was not tendered.
   
3. The learned Judge erred in fact when he failed to consider in his judgment that the doctor was not called to confirm allegations via a medical certificate on the presence of injuries as alleged by the complainant (PW 1) and her aunty (PW 3).
   
4. Bias.
   
5. Unfair treatment.
   
6. Double jeopardy.
   
7. That the learned Judge erred in law and in fact in failing to direct himself that the guilty verdicts are unreasonable based on the paucity of evidence led by prosecution at the trial.
   
8. The learned Judge erred in law and in fact by misdirecting himself and/or the assessors on the analysis in the prosecution case which ought to have benefited the Appellant.
   

Against Sentence

(a) The learned Judge erred in law when he failed to discount the appellants period in remand separately from the mitigating factors.

(b) The learned judge erred in fact when he considered the complaints' unsubstantiated claim of injury as an aggravating feature of the offending when a medical report was never tendered nor led as evidence at any stage of the trial."

5. The Appellant has submitted that as regards ground 1 that the summing up of the learned trial Judge was unbalanced, biased, highly prejudicial and was a clear misdirection to the Assessors. He also submits that the reference by the learned trial Judge to the defence witness as one who was a serving prisoner was prejudicial to him.
   
6. The evidence of the defence witness was not totally contradictory of the evidence of the complainant. The evidence that the complainant had come with the Appellant the previous night at about 11.45 p.m. and slept in a room of the house, and that they had had breakfast and went back to the room was consistent with that of the evidence of the complainant.
   
7. Although the complainant complained of injuries and the fact of rape by the Appellant no medical evidence was available which fact had not been stated in the summing up of the learned trial Judge.
   
8. In the light of these circumstances the learned trial Judge's reference to the fact that the defence witness was a serving prisoner may be argued as being prejudicial to the Appellant and therefore leave is granted on that basis.
   
9. As regards the second ground the Appellant submits that there were inconsistencies in the evidence of the complainant and the other prosecution witness which should have been set out in the summing up of the learned trial Judge. He also submits that the failure to produce the bed sheet where the complainant stated there was blood was also prejudicial to him.
   
10. There were inconsistencies in the evidence of the complainant and her aunt's regarding the injuries of the complainant which the learned trial Judge had not stated in his summing up which in the circumstances would be arguable to have caused prejudice to the Appellant. Therefore leave is granted on that ground.
    
11. In ground 3 the Appellant took up the position that there was no medical evidence regarding the allegation of rape and that the learned trial Judge should have considered that in his judgment.
    
12. Although there is no requirement for corroboration in rape cases, the circumstances of the case may have necessitated the requirement of medical evidence and that too may be arguable as having caused prejudice to the Appellant. Leave is granted on that ground.
    
13. The complaint regarding bias in ground 4, and the allegation of unfair treatment in ground 5 and double jeopardy in ground 6 are without merit and leave is refused on those grounds.
    
14. Leave is granted on ground 7 which is to the effect that the learned trial Judge failed to direct himself on the unreasonable verdict of the Assessors on the paucity of evidence led by the prosecution as it is arguable when considering the totality of the evidence.
    
15. Ground 8 is similar to ground 7 and therefore does not need special consideration.
    
16. As regards the sentence it is conceded by the Respondent that the ground set out regarding sentence is arguable as the sentencing judgment does not spell out clearly the reduction for the time he was in remand. Leave is granted to appeal against the sentence.
    

Bail pending appeal

17. Unlike in the case of bail pending trial, in bail pending appeal the threshold to be met is higher and it has to be shown that there is likelihood of the appeal being successful. The fact that the appeal is arguable is no basis to grant bail pending appeal. Monika Arora v. The State Criminal Appeal No. AU0001 of 2012 (16 October 2012).
    
18. The Appellant has failed to set out any exceptional grounds for granting bail.
    
19. In the present case although leave is granted to appeal there is no likelihood that the appeal will succeed and therefore the application for bail pending appeal is refused.
    

Orders of Court

1. Leave to appeal against conviction and sentence is allowed.
2. The application for bail pending appeal is refused.
   

Hon. Justice S. Chandra
Resident Justice of Appeal