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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 0060 of 2017
[In the High Court at Lautoka Case No. HAC 06 of 2014]
BETWEEN:
ERONI CEVAMACA
Appellant
AND:
STATE
Respondent
Coram : Prematilaka, JA
Counsel : Mr. M. Fesaitu with Ms. N. Sharma for the Appellant
: Mr. S. Babitu for the Respondent
Date of Hearing : 11 September 2020
Date of Ruling : 22 September 2020
RULING
[1] The appellant had been indicted in the High Court of Lautoka on a single count of rape committed at Lautoka in the Western Division on 11 January 2014 contrary to section 207(1) and (2) (a) of the Crimes Act, 2009.
[2] The information read as follows.
Statement of Offence
RAPE: Contrary to Section 207 (1) of (2) (a) of the Crimes Decree, 2009.
Particulars of Offence
ERONI CEVAMACA, on the 11th day of January 2014, at Lautoka in the Western Division, inserted his penis into the vagina of LITIA LEWAIRAVU, without her consent.
[3] The brief facts, as could be gathered the judgment are as follows.
[4] At the conclusion of the summing-up on 13 December 2016 the assessors unanimously had opined that the appellant was not guilty as charged. The learned trial judge had disagreed with the assessors in his judgment delivered on 15 December 2016, convicted the appellant and sentenced him on 29 December 2016 to 08 years and 11 months of imprisonment with a non-parole period of 07 years.
[5] The appellant’s timely application for leave to appeal against conviction and sentence had been filed by Samusamuvodre Sharma Law on 27 January 2017 and the CA registry had assigned the number AAU 005 of 2017. Another notice of appeal against conviction and sentence by the same law firm had been tendered on 03 May 2017 which the CA registry had registered under AAU 060 of 2017 on the premise that AAU 005 of 2017 had been deemed abandoned purportedly under Rule 44 (13) of the Court of Appeal Rules due to non-compliance with Rule 43 as the appellant’s lawyers had not filed an affidavit of service. Thereafter, the Legal Aid Commission had tendered an application for enlargement of time with amended grounds of appeal and an affidavit from the appellant only against conviction and written submissions on 02 April 2020 followed up by an application for bail pending appeal and written submissions on 11 June 2020. The state had tendered its written submissions on 10 September 2020.
[6] Presently, guidance for the determination of an application for extension of time within which an application for leave to appeal
may be filed, is given in the decisions in Rasaku v State CA, 0013 of 2009: 24 April pril 2013 [7] In Kumar/i> ;the Supreme Court held ‘[4] Appellate courts examine five factors by way of a principled approach to such applications. Those factors are: (i)reaso the failure to f to file within time. [8] Rasaku the Supreme Court fu heer held ‘These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application
for enlargement of time. Ultima it is for the court to upho uphold its own rules, while always endeavouring to avoid or redress any
grave injustice that might result from the strict application of the rules of court.’ [9] Under the third and fourth factors in Kumar, test for enlargement of time now is ‘real prospect of success’. I would rather consider the third and fourth factors in Kumar first before looking at the other factors which will be considered, if necessary, in the end. In Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019) the Court of Appeal said Law on bail pending appeal. [10] In Tiritiri v State [2015] FJCA 95; AAU09.2011 (17 July 2015) the Court of Appeal reiterated the applicable legal provisions and principles in bail pending appeal applications
as earlier set out in Balaggan v The State A of 2012 (3 December 2012 2012) [2012] FJCA 100 and repeated in Zhong v The State AAU 44 of 2013 (15 July 2014) as follows. ‘[5] There is also befhe Court an application forn for bending appeal b> pur to section 33(2) of thef the Act. The power of the Cof Appeal to grant &; bail pending appeal&b> may be exercised by a ce ofce of appeal pursuant to section 35(1) e Act [6] In6] In  Zhong –e State "[25] ether bail pending ding appeal should be granted is a matter for the exercise of the Court's discretion. The words used in section 33 (2) are clear. The Court may, if it sees fit, admit an appellant to bail pending l. The >The discreti to be exercised in accordacordance with established guidelines. Those guidelines are to be found in the earlier decisions of thirt and other cases determining such applications. In addn addition, the discretion is subject to the provisions of the Bail Act 2002. The discretion must be exercised in a manner is not inconsistent with the Bail Act. [26] The starting point in considering an application for baiding appeal is 0;is to recal distinctionction between a person who has not been convicted and enjoys the presumption of innocence and a person
who has been convicted and sentenced to m of sonment. In the fthe former case, under section 3(3) of thef the Bail Act there is a rebut presumptiomption in favour of granting bail. In the latter case, under section 3(4) of the;Bail Act, the presumption in favour of granting bail is displaced. [27] Once it has been accepted that under the Bail Act there isresumption in fain favour of bail for a convicted person appealing against conviction and/otence, it is necessary to consider the factors that that are relevant to the exercise of the discretion. In the first instance these are set out in section 17 (3) of the Bail Act wstates: "Wh> "When a court is considering the granting of bail to a person who has appealed against convicti sentthe court must tast take
into account: (a) the likelihood of success in then the appeal; (b) the likely time before the appeal hearing; (c) the proportion of the original sentence which will have been served by the appellant when the appeal is heard." [29] The requirement that an applicant establish exceptional circumstances is significant in two ways. First, exceptional circumstances may be viewed as a matter to be considered in addition to the three factors listed in section 17
(3) of the Bail Act. Thus, even if an applicant does not bring his application within section 17 (3), they be exceptional circumstances which may be sufficient
to j to justify a grant of bail pendineal. S Secondly, exceptional circumstances should be viewed as a factor for the court to consider when determining the chances of success.
(ii) The lThe length of the delay.
(iii) Whether there is a ground of merit justifying the appellate court's consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?
[28] Although section 17 (3) imposes an obligation on the Court to take into account the three matters listed, the section does not
preclude a court from taking into account any other matter which it considers to be relevant to the application. It has been well established by cases decided in Fiji that bail pendipeal b> should only be grantede thee there are exceptional circumstances. In Apisai ayawa Tnd Ot&# Ot–v- R (1978) 278) 24 FLR 28, the Court of Appeal emphasised the overriding importance of the exceptional circumstances requirement:
"It has been a rule of practice for many years that where an accused person has been tried and convicted of an offence and sentenced
to a term of imprisonment, only in exceptional circumstances will he be released on bail during the pending of an appeal."
bail pending appeal and sect7 (3) now enactenacts that requirement. However it gives no indication that there has been any change in the manner in whic
courermines the question and the courts in Fiji have long required a very high likh likelihoelihood of success. It is not sufficient that the appeal raises arguable points and it is not for the single judge on an application for bail pendineal to b>to delve into the actual merits of the appeal. That as was pointed out in Koya's case (Koya v The State;unreported AAU 11 of 1996 by Tikaram P) is the function of the Full Court after hearing fung full argument and with the advantage
of having the trial record before it."
[31] It follows that the long standing requirement that bail penappeal b> will only be grantedxceptioeptional circumstances is the reason why "the chances of the appeal succee fact section 17 (3) has been interpreted by this Court to mean a very high likelihoodihood of s of success."
[11] In Rape Seniloli & Ors. v s. v The State AAU 41 of 2004 ( 23 Augu04)2004) the Court of Appeal said that the likelihood of
su must be addressed first, and the two remaining matters in S.17(3) of the Bail Actt namely "the l time before tore the l hearing" and "the proportoportion of the original sentence which will have been served
by the applicant when the appeal is heard" arectlevant ' only if the Court accepts there is a real real like likelihood of success'
otherwise, those latter matters 'are otiose' (See also Ranigal v State [2019] FJCA 81; AAU0093.2018 (31 May 2019)
[12] In Kumar v State [2013] FJCA 59; AAU16.2013 (17 June 2013) the Court of Appeal said ‘This Court has applied section 17 (3) on the basis that the three matters
listed in the section are mandatory but not the only matters that the Court may take into account.’
[13] In Qurai v State [2012] FJCA 61; AAU36.2007 (1 October 2012) the Court of Appeal stated
‘It would appear that exceptional circumstances is a matter that is considered after the matters listed in section 17 (3) have been considered. On the one hand exceptional circumstances may be relied upon even when the applicant falls short of establishing a reason to grant bail under section 17 (3).
On the other hand exceptional circumstances is also relevant when considering each of the matters listed in section 17 (3).’
[14] In Balaggan the Court of Appeal further said that ‘The burden of satisfying the Court that the appeal has a very high likelihood of success rests with the Appellant’
[15] In Qurai it was stated that:
"... The fact that the material raised arguable points that warranted the Court of Appeal hearing full argument with the benefit of the trial record does not by itself lead to the conclusion that there is a very high likelihood that the appeal will succeed...."
[16] Justice Byrne in Simon John Mney v. Thv. The State Cr. No. AAU0103 of 2008 in 8 in his Ruling regarding an application for bail pending lppea#160;#160;id wiference to arguments based on inadequacy of the sthe summing up of the trial [also see <Talala v State [2017] FJ; ABU016 (4 July 2017)].
"[30]........All thll these mese matters referred to by the Appellant and his criticism of the trial Judge for allegedly not giving adequate directions to the assessors are not matters which I as a single Judge hearing an application for bail pendineal <1b> should attempt evpt even to comment on. They are matters for the Full Court ... ... .”
[17] Qurai quoted Seniloli and Others v The State AAU 41 of 2004 (23 Aug004) 004) where Ward P had
‘"The general restriction on granting bail pg app16l b>established by cases by Fiji _ _ _ is that it may only be g be granted where there are exceptional circumstances. That is still the pon ano notpt that, in considering whether such cich circumsrcumstances exist, the Court cannot considonsider the applicant's character, personal circumstances and any other matters relevant to the determination. I also note that, in many of the cases where exceptional circumstances have been found to exist, they arose solely or principally from the applicant's personal circumstances such as extreme age and frailty or serious medical condition."
[18] Therefore, the legal position appears to be that the appellant has the burden of satisfying the appellate court firstly of the existence of matters set out under section 17(3) of the Bail Act and thereafter, in addition the existence of exceptional circumstances. However, an appellant can even rely only on ‘exceptional circumstances’ including extremely adverse personal circumstances when he cannot satisfy court of the presence of matters under section 17(3) of the Bail Act.
[19] Out of the three factors listed under section 17(3) of the Bail Act ‘likelihood of success’ would be considered first and if the appeal has a ‘very high likelihood of success’, then the other two matters in section 17(3) need to be considered, for otherwise they have no practical purpose or result.
[20] Therefore, when this court considers leave to appeal or leave to appeal out of time (i.e. enlargement of time) and bail pending appeal together it is only logical to consider leave to appeal or enlargement of time first, for if the appellant cannot reach the threshold for either of them, then he cannot obviously reach the much higher standard of ‘very high likelihood of success’ for bail pending appeal. If an appellant fails in that respect the court need not go onto consider the other two factors under section 17(3). However, the court would still see whether the appellant has shown other exceptional circumstances to warrant bail pending appeal independent of the requirement of ‘very high likelihood of success’.
[21] Grounds of appeal urged on behalf of the appellant are as follows.
Ground 1 THE Learned trial Judge did not provide cogent reasons when overturning the unanimous opinions of the assessors that the Appellant is not guilty for the charge.
Ground 2 THE Learned trial Judge erred in law and in fact by not directing himself and the assessors on how to approach and assess the omissions arising from the prosecution witnesses evidences on oath with their police statements.
Ground 3 THE Learned trial Judge erred in law and in fact by misdirecting himself to conclude that the evidence of the inconsistencies of the prosecution witnesses is due to;
Ground 4 THE Learned trial Judge in his judgment erred in law and in fact by misdirecting himself to reasonably base his conclusion that the blood seen by the doctor on his examination gloves is the result of force used whereas his Lordship had not considered that;
(i) It is the doctor’s evidence that he is unable to conclusively state that rape had occurred per his finding;
(ii) It is the doctors evidence that the blood on the examination gloves is either from penetrative injuries or the patient having her menses;
(iii) It is not disputed issue in trial on the element of penetration;
(iv) There is no evidence adduced from the complainant that she received injuries as a result of the sexual intercourse.
[22] The appellant relies on Lautabui v State [2009] FJSC 7; CAV0024.2008 (6 February 2009) where the Supremrt examined the trial judge’s duty in disagreeing with the assessors and stated as foas follows.
‘[29] First, the case law makes it clear that the judge must pay careful attention to the opinion of the assessors and must have "cogent reasons" for differing from their opinion. The reasons must be founded on the weight of the evidence and must reflect the judge’s views as to the credibility of witnesses: Rli v>v Regu>a  [1960] 7 FLR 80;at 8ji CAfirmed Ram Bali vv&
&>‘[34] In order to give a judgcontaining cogent reasons fons for disagreeing with the assessors, the judge must therefore do more than state his or her conclusions. At the least, in a case where the accused have given evidence, the reasons must explain why the judge has rejected their evidence on the critical factual issues. The explanation must record findings on the critical factual issues and analyse the evidence supporting those findings and justifying rejection of the accused’s account of the relevant events. As the Court of Appeal observed in the present case, the analysis need not be elaborate. Indeed, depending on the nature of the case, it may be short. But the reasons must disclose the key elements in the evidence that led the judge to conclude that the prosecution had established beyond reasonable doubt all the elements of the offence.
[23] The Supreme Court in the subsequent decisions in Ram v State [2012] FJSC 12; CAV0001.2011 (9 May 2012), Chandra v State [ 015] 32; .2015.2015 (10 D(10 December 2015) and Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27 ary 2has fr elaed thy of rial judge when disagreeing with the majo majority rity of asof assessosessors. rs.
[24] In Ram, the appellant had been charged with murder under section 199 of the Penal Code and tried before three assessors who had unanimously found him guilty as charged, and the trial judge, agrewith the assessors, had convicted him and sentenced himd him to life imprisonment. The conviction and sentence was affirmed by the Court of Appeal, but on appeal to the Supreme Court the conviction was set aside on the basis that the Court of Appeal had failed to make an independent assessment of the evidence before affirming the verdict of the High Court which was found to be unsafe, unsatisfactory and unsupported by the evidence, giving rise to a miscarriage of justice. Justice Marsoof said
‘80. A trial judge's decision to differ from, or affirm, the opinion of the assessors necessarily involves an evaluation of the entirely of the evidence led at the trial including the agreed facts, and so does the decision of the Court of Appeal where the soundness of the trial judge's decision is challenged by way of appeal as in the instant case. In independently assessing the evidence in the case, it is necessary for a trial judge or appellate court to be satisfied that the ultimate verdict is supported by the evidence and is not perverse. The function of the Court of Appeal or even this Court in evaluating the evidence and making an independent assessment thereof, is essentially of a supervisory nature, and an appellate court will not set aside a verdict of a lower court unless the verdict is unsafe and dangerous having regard to the totality of evidence in the case.’
[25] In Mohammed  ate [2014] FJSC 2; CAV; CAV02.2013 (27 February 2014) the Supreme Court having examined several decisions remarked
‘[32] An appellate court will be greatly assisted if a written judgsetting out the evidence upce upon which the judge relies
when he agrees with the opinions of the assessors is delivered. This should become the practice in all trials in the High Court.’
[26] The Court of Appeal in Kaiyum v State [2014] FJCA 35; AAU0071.2012 (14 March 2014) referring to Ram and Mohammed said of the trial judge’s duty under section 237 of the Criminal Procedure Act, 2009 as follows:
‘[13] While we accept that in
[27] In Chandra, Justice Marsoof clarified what His Lordseant ragra79] and] and [80] in Ram as > as follows. In Chandra< the trial Judge had agreed with the assessors and convicted the appellant for murder.
‘[24] In arriving at its decision, this Court examined in paragraphs [79] and [80] of its judgment the difference between the jury system and the system of trial with assessors that prevails in Fiji, and concluded that in terms of section 299(2) of the Criminal Procedure Code, Cap 21, which was in force at the time of the High Court trial in 2008, as well as undetion 237 of the Criminal Procedure Decree, which is currentrrently in force, the trial judge was required to make an independent assessment of the evidence to be satisfied that the verdict of court is supported by the evidence and is not perverse. This Court also noted that if the trial judge disagrees whe ununimous or majority oity opinion of the assessors, "he shall give his reasons, which shall be written down and be pronounced in open court". This Court was here simply setting out theiremef the statutory lory law cuaw currently in force. In Praveen this Court did not, not, and did not have to in the circumstances of that case, express any view in regard to whether reasons have to be provided by the trial judge for agreeing withopini thefassessors.
‘[25] The confusion that surfaces in paragraphs [23] and [24] of the imp judgof the Court of Appeal arises from a failure to distinguish between (1) the requirequiremenrement of making an independent assessment of the evidence; and (2)&#i60;giving reasons for disagreeith the opinioninion of the assessors. In every casee a judge tries a case with assessors, the law requires the trial judge to make an independependent evaluation of the evidence so that he ecide whether to agree or d or disagree with the opinion of the assessors. The judge is duty bound to make such an evaluation as the decision ultimately is his, and not that of the assessors, unlike in a trial by jury. Once the trial judge makes such an evaluation and decides to a#160;with the assessorsssors, he is not required by law to give reasons, but he must give his reasons for disagreeing with she aors. However,ever, as was observed by this Court in paragraph [32] of its judgement in Moham Stab>State  [2014] FJSC 2; CAV02.2013 (27 FebruFebruary 2014),"an appellate court will be greatly assisted if a written judgment setting out the evidence upon which the judge relies when he agrees with the opinions of the assessors is delivered. This should become the practice in all trials in the High Court."
[28] However, Justice Keith said in Chandra
‘[35] The majority of the assessors expressed the opinion that Chandra walty of murder. The trial rial judge agreed with the majority, but in his judgment he did not say why. The form of his judgment
is heavily criticised by Chan160; [37] But it is dangerous to elevate what should be best practice into a rule of law. The best practice about the form of the judge's
judgment does not mean that the law compels the judge to do that in every single case. I do not think that the law requires the judge to spell out his reasons in his judgment in those cases in which (a) he agrees with
the assessors (or at any rate a majority of the assessors) and (b) his evaluatiot of videnvidence and his reasons for convicting
or acquitting the defendant can readily be inferred from his summing-up to the assessors without fear of contradiction. [29] When the trial judge affirms the opinion of the assessors his function was described by the Court of Appeal in Kumar v State [2018] FJCA 136; AAU103.2016 (30 August 2018) in the following manner. ‘[4] .............Furthermore there is no requirement for the judge to give any judgment when he agrees with the opinions of the assessors under sec237(3) of the Criminal Pnal Procedure Act 2009. Although a n of S of Supreme Court decisions have indicated that appellate courts would be assisted e judges were to give brief reasons for agreeing with the athe assessors, it is not a statutory requirement to do so. See: Mohammed –v- The State [2014] FJSC 2; CAV 2 of 2013, 27 February 201417; h2"> [30] In Singh the petitioner had been convicted of murder after trial by the High Court judge where the learned judge by his
judgment dated 16 September 2014, had overturned the unanimous opinion of the assessors that the petitioner was not guilty of the
crime. Upon conviction, the petitioner was sentenced to life imprisonment with a non-parole period of 20 years. The Court of Appeal
had affirmed the decision of the High Court judge. The Supreme Court disagreed and the following observations of were made by Hon.
Justice Saleem Marsoof. [31] The appellant also relies on the more recent case of Baleilevuka v State [2019] FJCA 209; AAU58.2015 (3 October 2019) where the Court of Appeal inter alia stated ‘43. .............. the reasons for differing with the opinion of the assessors must gent and clearly arly stated, fo on the
weight of the evie evidence, reflect the trial judge’s view as to the credibility of witnesses and be capable of withstanding
critical examination in the light of the whole e evi presented in then the tria trial. [33] However, what could be identified as common ground is that when the trial judge agrees with the majority of assessors, the law
does not require the judge to spell out his reasons for agreeing with the assessors in his judgment but it is advisable for the trial
judge to always follow the sound and best practice of briefly setting out evidence and reasons for his agreement with the assessors
in a concise judgment as it would be of great assistance to the appellate courts to understand that the trial judge had given his
mind to the fact that the verdict of court was supported by the evidence and was not perverse so that the trail judge’s agreement
with the assessors’ opinion is not viewed as a mere rubber stamp of the latter. [34] On the other hand when the trial judge disagrees with the majority of assessors the trial judge should embark on an independent
assessment and evaluation of the evidence and must give ‘cogent reasons’ founded on the weight of the evidence reflecting
the judge’s views as to the credibility of witnesses for differing from the opinion of the assessors and the reasons must be
capable of withstanding critical examination in the light of the whole of the evidence presented in the trial. [35] In my view, in both situations, a judgment of a trial judge cannot not 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.
[36] This stance is consistent with the position of the trial judge at a trial with assessors in Fiji i.e. the assessors are not the sole judge of facts. The judge is the sole judge of fact in respect of guilt, and the assessors are there
only to offer their opinions, based on their views of the facts and it is the judge who ultimately decides whether the accused is
guilty or not (vide Rokonabete v State hr 01st, 02nd 03rd and 04th grounds of appeal ‘54. The complainant agreed that on the day of the incident she was also wearing her panty but she had not mentioned about her
panty in her evidence in court and that her police statement was correct.’ [41] Regarding the evidence of Jone the following paragraphs are found in the summing-up where the trial judge had referred to different
versions of his narrative in the police statement and the testimony in court. 84. one also agreed that in his police statement he did not inform the Police about the complainant holding onto the frame of the
door. Jone further stated that he also had not informed the Police about the accused punching the complainant on her thigh. Jone
was referred to his police statement dated 11th January,2014 line 32 and line 33 as follows: “She then stated that, that guy forcefully punched both her thighs and forcefully had sex with her.” Joneed that he did not see the accused punching the complainanainant on the thigh. “After about 5 to 7 minutes the man came outside and woke the old man whosleeping in the sitting room and told him to go inside
the bedroom in which he just come oume out of.” [42] The person referred to as the elderly man or the complainant’s boyfriend Ashneel Kumar who could have shed light on what
transpired in that night was not called by either side to give evidence. There appear to be some inconsistencies, contradictions
and omissions between the testimony of the complainant and Jone as well. There are other aspects of the evidence of both the complainant
and Jone which I think needed close scrutiny by the trial judge. [45] The learned trial judge had once again summarized the evidence of the prosecution and defense in the judgment and explained
the inconsistencies, contradictions and omissions in the versions of the complainant and Jone on the premise that 02 years had passed
since the incident happened and the time gap could have affected their memory. However, confronted with their police statements both
witnesses had insisted that what they were telling in court was the truth. Had it been simply a case of lapse in memory I would have
expected them to correct themselves on the basis that they had forgotten certain aspects when reminded of their prompt versions given
to the police on the same day as the incident happened. In some instances the complainant had admitted having lied to the police
but not explained why she gave a false version to the police. In fact she had once admitted that what she had told in examination-in-chief
was wrong. One would not expect the witnesses to be human tape recorders but the fundamental substratum of their story should be
consistent unless reasonably explained. Hon. Mr. Justice C. Prematilaka JUSTICE OF APPEAL
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‘[24] It is always necessary to bear in mind that the function of this Court, as well as the Court of Appeal, in evaluating
the entirety of the evidence led at the trial and making an independent assessment thereof, is of a supervisory nature. .................In
other words, apart from the non-directions and mis-directions adverted to already, the learned trial judge has also fallen into error
in the effective discharge of his duty of independently evaluating and assessing the evidence led in the High Court in the course
of his judgment.
[25] I am therefore of the opinion that the Court of Appeal has in all the circumstances of this case, failed to discharge its supervisory
function of considering carefully whether the trial judge had adequately complied with his statutory duty imposed by section 237(4)
of the Criminal Procedure Decree. Though an appellate court such as the Court of Appeal and this Court does not have the advantage
of seeing the witnesses testify so as to appreciate their demeanour, it is evident on the available evidence that the trial judge
had failed to effective discharge his statutory duty of evaluation and independent assessment of the evidence when differing with
the unanimous opinion of the assessors that the petitioner is not guilty of murder, and the Court of Appeal erred in affirming the
said decision.’
‘[44] The question is has he correctly followed the guidance given in the cases referred to in the paragraph above.........’
[32] Therefore, there still appears to be some gray areas flowing from the above judicial pronouncements as to what exactly the trial
judge’s scope of duty is when he agrees as well as disagrees with the majority of assessors.
[38] However, the complaint of the appellant is that the trial judge had not followed the guidelines given in several judgments cited
above as to his burden when disagreeing with the assessors. Such compliance becomes even more important when the trial judge had
given what could be considered a complete summing-up on all aspects of law and facts to the assessors and when they had returned
with an opinion of not guilty.
[39] The case for the prosecution had been based on the evidence of the complainant and Jone Namakadre. The only issue at the trial
was that of consent. The trial judge had summarized the evidence of the complainant in paragraphs 30-62 of the summing-up in which
several inconsistencies, contradictions and omissions had been brought to the surface by the defense as highlighted in the summing-up.
They pervade the evidence of the complainant regarding her version on the chain of events preceding the alleged rape, matters associated
with the act of rape itself and post-rape events.
[40] It is not required and cumbersome to itemize each and every such inconsistency, contradiction and omission at this leave to appeal
stage but I would quote some paragraphs from the summing-up where the judge had referred to them.
‘44. The complainant further agreed that the chain of events she had described to the Police was different from the one she
told the court. She stated that whatever she told the court was the truth. In regards to the above complainant admitted that she
had lied to the Police.
‘46. The complainant agreed that the chain of events immediately before being pulled into the bedroom by the accused is different
from what she had told the court. The complainant upon questioning as to which version was the true version whether she was going
to the washroom or she was lying down beside Jone she answered &;On my way back from the wthe washroom’.
‘48. However, the complainant was unable to point out where it was stat her police statement that the accused had approached
her to have sexual intercourse with hith him and she had refused.’
‘49. The complainant admitted that the accused had not approached her to have sexual intercourse with him. The complainant
further stated that the evidence that she had given under oath in examination in chief was not correct when she said the accused
had asked her to have sexual intercourse with him before been dragged into the bedroom.’
‘52. The complainant agreed that everything was fresh in her mind when she gave her police statement and she also agreed that
the version she gave the Police was different from the version she had told the court. However, the complainant stated that the evidence
she gave in court was the truth. The complainant further maintained that she had started screaming from the time the accused started
pulling her hand at the doorway of his bedroom and not when the accused was punching her thighs as per her police statement.’
‘79. Jone agreed that the version of events stated in his police statement of how the complainant came into the house and how
she went out was different from the version he had told the court, however, he maintained that whatever he told the court was the
truth.
80. Jone agreed that he had given two different stories, one version to the Police and one version to the court but he maintained
that the version he told the court was the truth.
[43] The appellant’s evidence had been summarized in paragraphs 99-112 and doctor Nabaro’s evidence in paragraphs 113-121
of the summing-up. The appellant had taken up the position that he had invited the complainant to his house with the intention to
have sexual intercourse and she had agreed and once inside the house the complainant had come into his bedroom when requested by
the appellant to have sex with him and both had then engaged in consensual sexual intercourse. The doctor had not found physical
evidence of sexual intercourse when examining the complainant who was calm at the examination on the day of the alleged incident.
Nor had he observed any bruising or swelling on the complainant’s thighs despite three hard punches allegedly delivered by
the appellant causing unbearable and intense pain.
[44] The trial judge had given very compressive directions as follows on how the assessors should evaluate and decide on the reliability
and credibility of evidence before them vis-à-vis the guilt or otherwise of the appellant.
[46] The trial judge had found those inconsistencies, contradictions and omissions to be insignificant without explaining why he had
come to that conclusion, as they could have a direct or indirect bearing on the crucial issue of consent. Similarly, it is not possible
to ascertain the basis for trial judge’s assertion in the judgment that the complainant was able to withstand cross-examination
in the teeth of serval inconsistencies, contradictions and omissions highlighted in cross-examination where in one instance she had
admitted giving wrong evidence in examination-in-chief. Thus, the basis to treat the complainant’s evidence as truthful and
reliable by the trial judge is not made clear in the judgment.
[47] The trial judge had not found the appellant to be telling the truth. Once again the learned judge had not given any reasons as
to why he had come to that conclusion but he had posed the question whether the appellant would have invited all the group members
including the complainant to come to his house if he was going to have sexual intercourse with her. Yet, the evidence had revealed
that two of the group members (a male and a female) had already gone to one bedroom after their arrival indicating that the group
members had gladly accepted the appellant’s invitation to go to his house. On the other hand, one might also argue that the
appellant would not have invited the whole group home if he was going to have forcible sexual intercourse with the complainant and
done so in the face of alleged resistance witnessed by Jone providing perfect evidence against the appellant.
[48] I also do not find from the summing-up or the judgment that the prosecution had managed to demonstrate any inconsistencies, contradictions
and omissions in the appellant’s version of events.
[49] The trial judge had mentioned that the complainant had promptly reported the matter to the police and lack of motive for false
implication as reasons to believe the prosecution evidence. One question that arises from the prompt complaint is that despite the
promptness why there were so many inconsistencies, contradictions and omissions in the evidence of the complainant and Jone. In my
view, according to the summing-up and the judgment both prosecution witnesses do not appear to have offered reasonable explanations
for those inconsistencies, contradictions and omissions. As for the motive the trial judge himself had, however, stated as follows
in the summing-up as reasons for the false allegation of rape suggested by the appellant to the prosecution witnesses.
‘60. The complainant disagreed that to save her image and her relationship with her boyfriend she lied that the accused had
raped her......She also denied that the story of rape was made up by the complainant and her friends to make her look good in the
“eyes” of her boyfriend.’
97. Jone also disagreed that in order to take revenge from the accused for chasing him out of his house and swearing at him and in
order to save the relationship of the complainant with her boyfriend the witness, complainant and their employer had concocted a
story against the accused.’
[50] Further, the trial judge had treated the doctor’s evidence that he saw a bit of blood on his examination gloves as evidence
of forcible sexual penetration. However, I do not think that in the light of the totality of the doctor’s inconclusive evidence
this inference could be justified. The relevant paragraphs are as follows.
‘119. In respect of blood seen in the vaginal area the Doctor stated that it could have been through penetrative injuries
or patient could be menstruating at the time. The Doctor maintained that according to his report no laceration or tears were noted
on the patient but the Doctor did not rule out the possibility that sometimes lacerations could not be detected.
‘121. In a follow up to a question asked by the court, in answer to the State counsel the Doctor stated that even if forceful
penetration takes place not in all cases such penetration will cause a tear or laceration.’
[51] Therefore, I am of the view that though I cannot definitely say that the appellant will have a reasonable prospect of success
(I have considered this to be timely appeal as explained below) without the complete appeal record, I consider the issues as to whether
the trial judge’s judgment had properly focused on the weight of the evidence and reflected correctly as to the credibility
of witnesses and whether the reasons given to disagree with the assessors are capable of withstanding critical examination in the
light of the whole of the evidence presented at the trial, to be questions of mixed law and facts which should be considered by
the full court according to the principles set out in section 23 (1) of the Court of Appeal Act.
[52] Therefore, I grant leave to appeal against conviction on all grounds of appeal.
[53] I have considered all four grounds together, for the 02nd to 04th grounds of appeal are interconnected and deal with separate
aspects of the broad complaint under the first ground of appeal. The appellant is free to argue them collectively or separately at
the hearing before the full court and the full court may similarly decide whether to consider them under the first ground of appeal
or as separate grounds of appeal.
[54] I do not consider that there has been a delay in the appellant’s appeal as there does not appear to be any absolute obligation
cast by Rule 43(1)(b) of the Court of Appeal Rules to file an affidavit and therefore, the appeal need not have been considered abandoned
in terms of Rule 44(13). What it prescribes is a duty to ‘file a copy endorsed with a certificate of the date the notice was
served’ though an affidavit would not certainly be obnoxious to Rule 43(1)(b) and may be preferable as it carries more weight
and high degree of responsibility. However, the absence of an affidavit therefore, could not have made the original notice of appeal
deemed abandoned.
[55] As for bail pending appeal, I am not convinced by the limited material available to me that the appellant has a ‘very high
likelihood of success’ in the appeal. Nor has he demonstrated any other exceptional circumstance and therefore, bail pending
appeal is refused.
URL: http://www.paclii.org/fj/cases/FJCA/2020/267.html
