Court of Appeal of Fiji

[14] I also wish to reiterate the comments of Byrne J, in Julien Miller v The State AAU0076/07 (23 October 2007) that
‘... that the Courts have said time and again that the rules of time limits must be obeyed, otherwise the lists of the Courts would be in a state of chaos. The law expects litigants and would-be appellants to exercise their rights promptly and certainly, as far as notices of appeal are concerned within the time prescribed by the relevant legislation.’
[15] Therefore, delay alone is sufficient to defeat the appellant’s appeal if that is the only consideration.

Reasons for the delay

[16] As instructed by the appellant, his counsel in the oral submissions submitted that the appellant was unaware of the process of filing an appeal and was under the impression that sentence appeal was sufficient for both conviction and sentence. The appellant had been defended by two trial counsel from the Legal Aid Commission and therefore it is inconceivable that the appellant had not been advised properly regarding the appeal process. Had the appellant entertained any concerns regarding the conviction he could have challenged it in the same manner that he had challenged the sentence.

[17] Therefore, I am not convinced that the appellant has satisfactorily explained the substantial delay in lodging his appeal against conviction.

Merits of the appeal

[18] In the Statemesh Patel (AAU 2AAU 2 of 2002: vemberember 2002) this Court, when the delay was some 26 months, stated (quoted in Waqa v State [2013] FJCA 2; AAU62.2011 (nuary) that delay alone will not decide the matter of r of extension of time and the court wouldwould consider the merits as well.

"We have reached the conclusion that despite the excessive and unexplained delay, the strength of the grounds of appeal and the absence of prejudice are such that it is in the interests of justice that leave be granted to the applicant."

[19] Therefore, I would proceed to consider the third and fourth factors in Kumar regarding the merits of the appeal as well in order to consider whether despite the substantial delay and want of an acceptable explanation, still the prospects of his appeal would warrant granting enlargement of time.

[20] Grounds of appeal against conviction urged on behalf of the appellant are as follows.

(i) ‘That the learned trial Judge erred in law and in fact when he failed to direct the assessors and himself that the evidence of Shane Pickering was unreliable.

(ii) That the learned trial Judge erred in law and in fact when he failed to direct the assessors and himself on the principle of recent complaint and/or delayed reporting.

(iii) That the learned trial Judge erred in law and in fact when he failed to direct the assessors and himself on the issue of the delayed charge against the Appellant.

(iv) That the learned trial Judge erred in law and in fact when he placed more emphasis on the Appellant having to prove his innocence when the burden of proof rested always with the State.

(v) That the learned trial Judge erred in law and in fact when he failed to consider the defective charge under Count 2 of the Information.

[21] The trial judge had summarised the evidence of the prosecution in the judgment as follows.

‘[5] The complainants “GM” and “AB” were students of a Primary School, in the year 2006 they were 8 years of age and in class 3. The accused was their class teacher.

[6] Between 1^st Oc, 2006 and 30^{th November 2006 the accused took the complainant “GM” to the last cubicle in the classroom. The complainant had some errors in her book. The accuade tmplainant sit on t on his lap and he opened her legs with his legs thereby spreading it apat apart. Whilst sitting on the lap of the accused she would be facing the other side. The accused would pull the side of her underwear and insert his penis inside her vagina.}

[7] When the accused inserted his penis into the complainant’s vagina she felt his penis and it was painful. This happened on more than one occasion. The complainant did not consent to what the accused had done to her. She did not tell anyone about what the accused was doing to her because she didn’t know at that time what he was doing was right or wrong.

[8] The other complainant “AB” informed the court that between 1^st October, 2006 and 30^th November, 2006 the accused would take her to the last cubicle in the classroom and make her sit on his lap with the book in front of them. The accused would ask questions and at the same time shift her panty to one sidee her panty was too tight tght the accused would pull it down to her ankle.

[9] Whilst sitting on the lap of the accused the complainant would be facing the other side. The accused would rock her back and forth by holding her waist with his hands whilst rocking she could feel his penis on the top layer of her vagina which was her clitoris.

[10] The complainant was scared but did not say anything. This happened on more than one occasion. The complainant did not agree to what the accused had done to her.

[11] The third prosecution witness was Dr Elvira Ongbit on 28 November, 2006 the Doctor had examined both the complainants. The specific medical findings for both the complainants were that their hymen was intact. The hymen been intact meant there was no injury on the hymen.

[12] The Doctor’s opinion was that on the evidence of both the complainants there was penetration by the glans penis (which was the tip of the penis) of the accused through mild force exerted into the vagina of both the complainants. The Doctor also stated that since no hymnal lacerations were seen it did not mean there could be no penetration of the vagina.

[13] The final witness was Shane Pickering who informed the court that he was a student in the same class as the two complainants. Between 1^st October, 2006 tsup>th/sup> November, 2006aw the complaomplainant “GM” sitting on the lap of the accused in between his lnside the last cubicle when he went to give his attendance book to the accused. The accusedcused told the witness to go back and take his seat.

[22] The trial judge had narrated the evidence of the appellant as follows.

‘[14] The accused informed the court that in the year 2006, he was teaching both the complainants. The accused denied all the allegations made against him by both the complainants he also denied what Shane Pickering (PW4) had told the court. Furthermore the accused was of the view that his strictness towards his students prompted such allegations to be made against him. The accused agreed that in his experience as a Teacher an 8 year old would have almost zero knowledge about sexual activity.

[15] The second defence witness Penina Takobe informed the court that in the year 2006 she was teaching the class adjacent to the class of the accused. She was able to see the accused’s classroom through the glass. She also stated that at no time she saw the complainants sitting on the accused’s lap. Furthermore the witness stated that the cubicle could only fit one person and if the chair was slightly put back the other students would see.

01^st ground of appeal

[23] The appellant complains that the third witness for the prosecution Shane Pickering had given inconsistent evidence as stated in paragraphs 67-70 of the summing-up and paragraph 19 of the judgment and the trial judge had failed to direct the assessors and himself in line with the observations in Singh v The State [2006] FJSC 15; CAV0007U of 05S (19 October 2006).

67. ‘The final witness for the Prosecution was Shane Pickering. In the year 2006 the witness was in the same class as the two complainants, between1^st October, 2006 to 30^th November, 2006 the witness saw the complainant “GM” sitting on the lap of the accused in between his legs. They were sitting inside the last cubicle of the classroom. He sa two he went to give hive his attendance book to the accused. Thd. The witness did not see anyone else other “GM” sitting on the lap of the accused.
    
68. In cross examination the witness agreed that both the complainants were his good friends. On the day he saw the complainant “GM” sitting on the lap of the accused in the cubicle he had put the Union Jack flag up on his cubicle as was the procedure when the assistance of the teacher was required. The accused had not come to him so he walked over to the accused. The witness was referred to line 4 of his police statement dated 21 February, 2007 which was “Ied to ask my teacheeacher a question with regards to my pace.”
    
69. The witness agreed that he approached the accused tsed to ask question regarding his pace and not to show his attendance book. Further the witness stated that the version he had given to the Police was true.
    
70. The witness in further cross examination informed the court that he did not see “AB” sitting on the lap of the accused the witness was again referred to line 6 of his police statement which was “I always seley and Gand Gabriella sit on his lap and not the other girls.” The witness agreed that ths version given to Police and his evidence in court were two different versions.
    

[24] Paragraph 19 of the jnt is as follows.

‘[19] I accept the evidence of Shane Pickering who who informed the court he saw the complainant “GM” sitting on the lap of the accused in between his legs inside the last cubicle. This witness had gone close enough to where the accused was sitting to be told to go away. There is no doubt in my mind that when the complainant “GM” was sitting on the lap of the accused he was able to fit himself in the cubicle by sitting on the chair.

[25] Paragraph [51] of Singh v The State (supra) contains a discussion on the cautions and warnings to be given to the assessors in evaluating the evidence of a witness who had made a previous statement on oath directly inconsistent with evidence given in court particularly in the context of accomplice evidence. In the present case Shane Pickering’s evidence in court is contrasted with his police statement not given on oath and he is not in the position of an accomplice. Thus, Singh is not directly applicable to the current situation.

[26] It appears that the evidence of Shane Pickering, another student of the same class of the victims, was only of corroborative value. The main evidence of the two acts of rape came from the victims. It is also clear that the inconsistency of Shane Pickering’s evidence relates to the purpose why he approached the appellant and not on what he actually saw going on between the appellant and one of the victims, GM. Thus, the contradiction was on a peripheral matter. His evidence did not touch the other victim, AB at all.

[27] Therefore, even if the evidence of Shane Pickering were to be completely disregarded there was sufficient evidence of both victims to support the assessors’ opinion and the trial judge’s conviction. The case against the appellant had to stand or fall on the evidence of the victims and not on Shane Pickering’s evidence. The contradictions in Shane Pickering’s evidence did not affect the evidence of the victims but if at all they affected his own evidence.

[28] The Court of Appeal decision in Nadim v State [2015] FJCA 130; AAU0080.2011 (2 October 2015) is more relevant in evaluating Shane Pickering’s evidence.

‘[13] Generally speaking, I see no reason as to why similar principles of law and guidelines should not be adopted in respect of omissions as well. Because, be they inconsistencies or omissions both go to the credibility of the witnesses (see R. v O’Neill [1969] Crim. L. R. 260). But, the weight to be attached to any inconsistency or omission depends on the facts and circumstances of each case. No hard and fast rule could be laid downhat r. The broad guideguideline is that discrepancies which do n do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance (see ada Bhoginbhai Hirjibhaiibhai v State of Gujarat [1983] AIR 753, SCR (0)

[29] Therefore, there is no real prospect of success in this groundround of appeal.

02^nd ground of appeal

[30] The appellant contends that the trial judge had failed to direct the assessors on recent complaint evidence. There is nothing to indicate in the summing-up or the judgment that the prosecution had relied on any evidence that could be regarded as a recent complaint to enhance the credibility of the victims via consistency. In fact going by paragraphs 39 and 50 of the summing-up nothing had been revealed in evidence of any recent complaint made by the victims other than the fact that the father of one of the victims, having reported the matter to the police and the doctor having examined both victims on 29 November 2006. In the circumstances, there was no obligation on the part of the trial judge to direct the assessors on recent complaint evidence.

[31] The only way the consistency of the victims’ testimony could have been tested was by comparing and contrasting it with their previous statements such as police statements. It does not appear that the defence had been able to point out material omissions or contradictions in the evidence of the victims in cross-examination.

[32] Therefore, there is no real prospect of success in this ground of appeal.

03^rd ground of appeal

[33] The gist of the appellant’s argument appears to be that the proceedings in the High Court had been initiated in the year 2014 after a considerable delay and the reasons for the delay are not clear from the summing-up or the judgment. The trial had commenced and concluded in September 2017. The appellant seems to argue that because of the long delay of 11 years from the date of offending to the conclusion of the trial in the High Court there is a doubt of the victims’ evidence in so far as whether they could actually recollect of the events that happened in 2006.

[34] Firstly, the reasons for the delay are not clear from the summing-up or the judgment. Thus, where the blame should lie for the delay cannot be ascertained.

[35] Secondly, the complaint of delayed proceedings ordinarily should be relevant in the matter of sentence in that the case against him like the sword of Damocles was hanging over the appellant’s head over a prolonged and unduly long period of time which is not a matter that could affect the convictions per se.

[36] In any event, the only way to test the victims’ testimony was by way of cross-examination and confronting them with any embellishments added at the trail to their contemporaneous statements made to the law enforcement authorities.

[37] I think that the decision in Longman v The Queen [1989] HCA 60; [1989] 168 Clr 79 is not relevant here as the High Court of Australia was in that case interpreting section 36BE of the Evidence Act, 1906 (W.A.) vis-à-vis the traditional warning that it is unsafe to convict on the uncorroborated evidence of the victim or a child of a sexual assault offence. The legal frame work in Fiji is different. Circumstances under which the unlawful and indecent assault had happened in Longman are significantly different to the appellant’s case and in Longman no complaint had been made for over 20 years. In the present case the complaint of rape had been reported at least within two months and the victims had been medically examined on 28 November 2006.

[38] Therefore, there is no real prospect of success in this ground of appeal.

04^th ground of appeal

[39] The appellant argues that the trial judge had placed more emphasis on his ‘burden of proof’ as opposed to the burden of proof on the prosecution. He refers to paragraphs 18 and 19 of the judgment.

‘[18] On the other hand I am not satisfied that the accused told the truth in court when he denied the allegations. It was obvious to me that he was very careful in choosing his words as part of his evidence. The accused was not forthright as well. I also do not accept the evidence of defence witness Penina Takobe to the extent that when the chair in the cubicle was slightly put back the other students would be able to see who was sitting on the chair in view of what Shane Pickering (PW4) told the court.

[19] I accept the evidence of Shane Pickering who informed the court he saw the complainant “GM” sitting on the lap of the accused in between his legs inside the last cubicle. This witness had gone close enough to where the accused was sitting to be told to go away. There is no doubt in my mind that when the complainant “GM” was sitting on the lap of the accused he was able to fit himself in the cubicle by sitting on the chair.

[40] However, the above paragraphs in the judgment cannot be considered in isolation. The trial judge had considered the prosecution evidence from paragraph 5 to 13 of the judgment and stated as a conclusion that

‘[16] I accept the evidence of both the complainants as truthful and reliable. I have no doubts in my mind that both the complainants told the truth in court their demeanour was consistent with their honesty. The complainants were able to recall what had happened to them a decade ago. The complainants were forthright and straight forward in their evidence and were able to withstand cross examination. This also applies to the other prosecution witnesses their demeanour in court, the way they answered questions and gave evidence leads to the inescapable conclusion that they were truthful and can be believed.

[17] The fact that the complainants who were 8 years of age at the time did not complain to anyone or resist what was been done to them does not in any way affect the reliability of their evidence.

[20] I am satisfied beyond reasonable doubt that it was the accused who between 1^st Oct2006 and 30^th/sup> Nor, 2006 had unlawful carn carnal knowledge of both the complainants “AB” and “GM” without their consent.

[22] I agree the mous opinion of t of the assessors. On the evidence before fore the court it was open to the assessors to reach such a conclusion.

[41] The judge had correctly dealt with the burden of proof and standard of proof in paragraphs 9 and 10 of the summing-up and even in the judgment he had accepted that the prosecution had proved its case beyond reasonable doubt. What the trial judge had said in the impugned paragraph 18 of the judgment is that the appellant’s evidence had not been able to create a reasonable doubt in the prosecution case as an addendum. It certainly is not an attempt to transfer the burden of proof. Therefore, there is no substance in the appellant’s complaint.

[42] The judgment of a trial judge cannot be considered in isolation without necessarily looking at the summing-up, for in terms of section 237(5) of the Criminal Procedure Act, 2009 the summing-up and the decision of the court made in writing under section 237(3), should collectively be referred to as the judgment of court. A trial judge therefore, is not expected to repeat everything he had stated in the summing-up in his written decision (which alone is rather unhelpfully referred to as the judgment in common use) even when he disagrees with the majority of assessors as long as he had directed himself on the lines of his summing-up to the assessors, for it could reasonable be assumed that in the summing-up there is almost always some degree of assessment and evaluation of evidence by the trial judge or some assistance in that regard to the assessors by the trial judge.