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Souvuna v State [2014] FJCA 48; AAU121.2012 (11 April 2014)

IN THE COURT OF APPEAL
On appeal from the High Court

CRIMINAL APPEAL NO. AAU121 OF 2012
(High Court Case No. HAC 240 of 2010S)

BETWEEN:

SIMIONE RATULEVU SOUVUNA
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA

Counsel : Ms N. Nawasaitoga for the Appellant
Mr. Y. Prasad for the Respondent

Date of Hearing : 18 & 27 March 2014
Date of Ruling : 11 April 2014

RULING

[1] The appellant was tried and convicted of rape in the High Court at Suva. He seeks leave to appeal against conviction on the following grounds:

"1. The learned trial Judge erred in law when he did not direct the assessors in respect of the defence of mistake of fact under section 35 of the Crimes Decree No. 44 of 2009.

2. The learned trial Judge erred in law and in fact when he failed to direct and guide the assessors on how to approach the answers contained in the caution interview and the weight to be attached to the disputed confession."

[2] Leave is required on any ground which involves a question of mixed law and fact, or fact alone (section 21(1)(b) of the Court of Appeal Act). The test for leave is whether the ground is arguable before the Full Court (Naisua v State Criminal Appeal No. CAV00010 of 2013). A single judge has power to grant leave (section 35(1) of the Court of Appeal Act).

Mistaken belief
[3] Whether the trial judge should have given directions on a defence is a question of mixed law and fact, which requires leave. Mistaken belief or mistake of fact is a statutory defence. The Crimes Decree has drawn a distinction between mistake of fact in cases that require fault element other than negligence and the strict liability cases. There is no need to outline the distinction in this case. Rape is not a strict liability offence. Rape requires proof of a fault element unless the victim is under the age of 13 years.

[4] Fault elements may be intention, knowledge, recklessness or negligence (section 18(1) of the Crimes Decree). For rape, the fault element is knowledge. In other words, the physical act of penetration is carried out with the knowledge that the complainant has not consented. If the complainant is under the age of 13 years, the law is that she or he is not competent to give a valid consent to a sexual act. So in those cases, even if consent was given, the accused cannot rely on either the defence of consent or mistaken belief that the complainant had consented.

[5] Section 34(1) of the Crimes Decree provides:

"34.-(1) A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if –

(a) At the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and

(b) The existence of that mistaken belief or ignorance negates any fault element applying to that physical element.

(2) In determining whether a person was under mistaken belief about facts, or was ignorant of the facts, the court may consider whether the mistaken belief or ignorance was reasonable in the circumstances."

[6] Under the Penal Code (now repealed), a mistaken belief had to be both honest and reasonable. Under the Crimes Decree, the mistaken belief has to be reasonable only. The questions that arise under section 34 are:

Was the appellant under a reasonable mistaken belief [that the victim was his wife] when he digitally penetrated the vagina of the victim?

Whether the existence of that mistaken belief negated the appellant's knowledge that the victim had not consented?

[7] The victim and the appellant are related. She called him uncle (mother's cousin). At the time of the incident she was 17 years old, attending school and residing with her aunt Alumita. The appellant is a married man. On the night of the incident he was visiting Alumita's home. He decided to sleep overnight at Alumita's home. The victim slept on the floor in the living room with Alumita and her grandmother. The appellant slept next to the victim. While she was asleep, the victim felt someone was fondling her vagina. She felt a finger went inside her vagina. She got up, ran to her brother's room and screamed. Alumita woke up. The appellant stood up and walked away. The victim told Alumita that the appellant touched her.

[8] The appellant gave a conflicting account regarding the physical act. In his caution interview, the appellant admitted inserting his finger in the victim's vagina (Q. 21). He did not offer any explanation for his conduct. In fairness to him, the caution interview was sparse. He was not asked to explain his conduct. The caution interview was admitted without any challenge to its admissibility. The appellant told the trial judge that he had made his caution statement voluntarily.

[9] In his evidence, the appellant said he was sober. He did not drink grog. When he was lying down beside the victim he hugged her thinking she was his wife. But when the victim pushed his hand away, he knew she was his niece. He denied digitally penetrating her vagina using his finger.

[10] Whether the appellant was under a reasonable mistaken belief that the victim was his wife when he digitally penetrated her vagina, of course, is a question of fact. If he was not under a reasonable mistaken belief, then there is no need to consider the second question. If he was under a reasonable mistaken belief, then the assessors must be directed to consider whether the appellant's belief negated his knowledge that the victim had not consented? These questions were not put to the assessors.

Caution interview
[11] The caution interview contained an incriminating admission by the appellant. When an incriminating admission is led in evidence, the assessors must be directed that before they can act on the admission, they must be satisfied of two things. Firstly, the accused made the admission. Secondly, the admission is true. In other words, the truth of an admission is for the assessors to consider. These directions were not given to the assessors.

Result
[12] The grounds of appeal are arguable.

[13] Leave granted.

Hon. Justice D. Goundar
Judge of Appeal