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Tamanalevu v State [2015] FJCA 127; AAU0078.2012 (30 September 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU 0078 OF 2012
[High Court Case No. HAC 344 of 2011]

BETWEEN:

LIVAI TAMANALEVU
Appellant

AND:

THE STATE
Respondent

Coram: Goundar JA

Counsel: Mr. M. Yunus for the Appellant
Mr. Y. Prasad for the State

Date of Hearing: 26 August 2015
Date of Ruling: 30 September 2015

RULING

[1] Following a trial in the High Court at Suva, the appellant was convicted on two counts of indecent assault and two counts of rape. He was sentenced to 14 years' imprisonment with a non-parole period of 12 years. This is a timely application for leave to appeal against conviction and sentence.

[2] At trial, the appellant was represented by counsel. However, he filed his initial notice and grounds of appeal in person. Subsequently, he was granted legal aid and his counsel, in summary raises the following questions:

1. Whether the lack of dock identification by the complainant and subsequent conviction is sustainable in law.
   
2. Whether there is an error of law by the failure of the learned trial Judge in addressing the assessors on the law regarding recent complaint.
   
3. Whether the directions of the learned Trial Judge at paragraph 27, 28 and 29 could be considered as unfair against the appellant.
   

[3] In the interests of justice, I deal with both the grounds filed in person and the questions raised by counsel.

[4] His first complaint relates to the no case to answer ruling. The appellant submits the trial judge failed to give cogent reasons for his ruling. The test for no case to answer is whether there is some evidence on each element of the charged offence. The test does not permit the trial judge to carry out any assessment of the credibility or reliability of evidence.

[5] The victim gave evidence. She was the appellant's niece. She gave evidence of the alleged sexual assaults by the appellant over a period of time when the appellant and his wife were her guardian. The evidence touched on each element of the alleged offences. There was no need to make any further assessment of the evidence. As far as the evidence touched on each element of the charged offences, which it did, then the trial judge was obliged to find the appellant had a case to answer. Identification was not an issue at the trial. There was no suggestion made to the victim that the person in the dock was not the person who had indecently assaulted and raped her. The victim was a relative of the appellant and dock identification would not have added anything to the prosecution's case.

[6] The second complaint relates to the contents of the victim's medical report. The appellant submits that the medical findings were inconsistent with the history related by the victim. The medical report was part of the Agreed Facts. The report was of limited probative value because the abuse took place over a period of time and the medical examination was conducted days after the last alleged incident. This ground is not arguable.

[7] The third complaint relate to the fact that the medical doctor did not take any swabs from the victim. This ground is misconceived because there was no DNA present for the doctor to take swabs.

[8] The fourth complaint relates to the evidence of the appellant's wife. The appellant's wife gave evidence that the victim made no complaints to her regarding the sexual abuse by the appellant. The trial judge directed the assessors that the appellant's wife was in support of her husband and whether this is to be expected was a matter for them. The wife's evidence was of limited relevance. The victim said that she had complained to her aunty but she did not listen. Firstly, there was no evidence of recent complaint for the trial judge to give directions on it. Secondly, the assessors and the trial judge did not find the lack of complaint affected the veracity of the victim's evidence. This ground is not arguable.

[9] The fifth complaint relates to the defence's case. The appellant contends his defence was not fairly put to the assessors. The appellant's defence was one of denial. The trial judge did put this defence to the assessors at paragraph 25 of the Summing Up. This ground is not arguable.

[10] The sixth ground relates to the composition of the assessors. The appellant contends that two of the three assessors were I-Taukei. Since the victim was I-Taukei the assessors were biased. At trial, no objection was taken to the composition of the assessors. Race or ethnicity of an assessor is not a basis for disqualification. The Constitution prohibits discrimination based on race. This ground is misconceived.

[11] The grounds against sentence are summarised as follows:

(1) Balancing of aggravation and mitigation is erroneous.

(2) Sentence is harsh and excessive.

(3) Four classical principles of sentencing.

[12] This was a rape of teenage girl by a trusted person. The incident of indecent assault and rape were repeated.

[13] The established tariff for this kind of offending is 10-16 years' imprisonment. The trial judge used 9 years as his starting point and by adjusting for the mitigating and aggravating factors, arrived at a term of 14 years' imprisonment. The total sentence is within the tariff and therefore the sentence appeal is not arguable.

Result
[14] Leave to appeal conviction and sentence refused.

Hon. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for the Respondent