Court of Appeal of Fiji

[7] Generally, where the delay is minimal or there is a compelling explanation for a delay, it may be appropriate to subject the prospects in the appeal to rather less scrutiny than would be appropriate in cases of inordinate delay or delay that has not been entirely satisfactorily explained (vide Lim Hong Kheng v Public Prosecutor [2006] SGHC 100).

[8] It is clear that the delay is substantial and appellant’s explanation for the delay is that he was ignorant of the law and legal procedure in lodging an appeal. According to him, he had given appeal papers initially in October and November 2018 to two officers at Natabua correction facility to be lodged with the Court of Appeal registry but that effort had not materialised. Thereafter, he had resent his appeal papers to the registry in November 2019 though some other correction officers in October 2018 had asked him to file his appeal papers again. Thus, it appears that he had waited from October 2018 to November 2019 to file another sent of his appeal papers and therefore, he has offered no reasonable excuse for the delay. The DPP had, however, not averred any prejudice that would be caused by an enlargement of time. If there is a real prospect of success in the belated grounds of appeal in terms of merits this court would be inclined to grant extension of time (vide Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019).

[9] The grounds of appeal urged on behalf of the appellant are as follows:

‘Conviction

Ground 1:

THAT the Learned Trial Judge erred in law and in fact when he did not properly analyse the evidence of conduct by the victim and her mother in light of the defence case of the complaint being fabricated by the victim’s mother.

Ground 2:

THAT the Learned Trial Judge erred in law and in fact when he stated in his Judgment that he is unable to agree with the opinion of the assessors which he thinks was motivated by the assessor’s reluctance to send the young accused to prison.’

[10] The trial judge had summarised the case against the appellant in the sentence order as follows:

3. You were a 19 year-old young person when these offences were committed on your step-cousin who was only 4 years old at that time. You are now 23 years old.
   
4. You were staying at victim’s house when the incident happened. When victim’s mother was washing clothes, the victim went to the toilet. You pushed opened the door and entered the toilet. You then carried her and put your penis in her mouth. Then you lifted her up and bent her over and inserted your penis inside her vagina. When she tried to shout, you blocked her mouth. You slapped her and informed her not to inform the incident to anybody. The victim complained to her mother a few days after the incident. The matter was reported to police and the victim was medically examined. The doctor who examined the victim found her hymen not intact and the area around inner wall of the vagina red.
   

[11] The appellant had elected to exercise his right to remain silent. His counsel had put the appellant’s case to the prosecution witnesses in cross examination. Defence case had been one of denial and also that the victim’s mother had made up this story and falsely implicated the appellant because she wanted him out of her house.

01^st ground of appeal

[12] As stated by the respondent in the written submissions this ground of appeal and submissions made to buttress it are somewhat opaque.

[13] The prosecution case was built on the victim’s unsworn evidence (PW2), her mother’s recent complain evidence (PW1) and supporting medical evidence (PW3). The appellant did not adduce any evidence but cross-examined PW1 and PW2 on the basis that the allegations of rape was a fabrication as result of a domestic dispute between PW1 and the appellant’s step mother. In other words, the victim had been coached to falsely implicate the appellant in order to remove the appellant from home.

[14] Since the assessors had thought that he appellant was not guilty of the two charges the trial judge had a duty embark on an independent assessment and evaluation of the evidence and to 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 those reasons must be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial [vide Lautabui v State [2009] FJSC 7; CAV0024.2008 (6 February 2009), Ram v State [2012] FJSC 1V0001.2011 (9 May 2012), Chandra v < S/ute&Baleilevuka v State [2019] FJCA 209; AAU58.2015 (3 October 2019) and Singh v State [2020] FJSCAV 0f 201 February 2020)] 20)] and Fraser v State AAU 128.2014 (5 May 2021)]