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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 52 of 2020
[In the High Court at Suva Case No. HAC 348 of 2018]
BETWEEN:
SHIVA SHIVNESH LAL
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, ARJA
Counsel: Mr. M. Fesaitu and Ms. S. Daunivesi for the Appellant
: Ms. K. S. Semisi for the Respondent
Date of Hearing: 02 November 2021
Date of Ruling: 05 November 2021
RULING
[1] The appellant had been indicted in the High Court at Suva with one count of rape contrary to section 207(1) and (2) (a) of the Crimes Act, 2009 and one count of sexual abuse contrary to section 210 (1) (a) of the Crimes Act, 2009 committed at Nasinu in the Central Division between 01 August 2018 and the 31 August 2018.
[2] The information read as follows:
‘COUNT ONE
Statement of Offence
RAPE: i>contrary to section 2ion 207(1) and (2) (a) of Crimes Act of 2009.
Particulars of Offence
SHIVA SHIVNESH LAL betwee 1
COUNTCOUNT TWO
>Statement of Offence
SEXUAL ASSAULT: contrary to sec2ion 210 (1) (a) of Crimes Act of 2009.
Particulars of Offence
SHIVA SHIVNESH LAL be the >st/sup> day of August 201 the 31
[3] At the end e summing-up, the assessorsssors had unanimously opined that the appellant was not guilty of both counts. The learned trial judge had disagreed with the assessors’ ‘not guilty’ opinion, convicted the appellant of both counts and sentenced him on 31 July 2019 to an aggregate sentence of 10 years of imprisonment with a non- parole period of 06 years (after the remand period was deducted the sentence was 09 years, 08 months and 15 days with a non-parole period of 05 years, 08 months and 15 days.
[4] The appellant had appealed in person against conviction out of time (14 July 2020). Thereafter, the Legal Aid Commission had sought enlargement of time to appeal accompanied by an affidavit, amended grounds of appeal and written submission filed on 17 June 2021. The state had tendered its written submissions on 16 September 2021.
[5] 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 u v State CAV0009, of 2009: 009: 24 April 2013 [2013] FJSC 4 and>Kumar v State; Sie; Sinu v State CAV0f 200 August 2060 #160; [2012] FJSC 17. Thus, thtors considered in thin the matter of enlargement of time are (i) the reason for the faie failure to file within time (ii) the 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?
[6] 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)].
[7] The delay of the appeal (being 10 ½ months) is substantial. The appellant had stated that he was expecting his private trial lawyers to lodge the appeal but his father learnt that $28,000.00 had to be paid in order to obtain their services for the appeal. Then, he decided to file his appeal in person. Nevertheless, this explanation cannot account for the delay of 10 ½ months. Thus, his explanation for the delay is unacceptable. Nevertheless, I would see whether there is a real prospect of success for the belated grounds of appeal against conviction and sentence in terms of merits [vide Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019]. The respondent has not averred any prejudice that would be caused by an enlargement of time.
[8] The sole ground of appeal urged on behalf of the appellant against conviction is as follows:
Conviction
‘THAT the Learned Trial Judge did not provide cogent reasons when overturning the unanimous opinions of the assessors.’
[9] The trial judge in the summing-up had summarized the complainant’s evidence against the appellant as follows:
[10] The other witnesses for the prosecution were the complainant’s stepbrother (PW2) and the doctor.
[11] The appellant’s position had been a denial and it is described as follows in the judgment:
01st ground of appeal
[12] The trial judge had overturned the opinion of not guilty by the assessors which he was entitled to do. The judge is the sole
judge of fact (and law) 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 [2006] FJCA 85; AAU0048.2005S (22 March 2006), Noa Maya v. The State [2015] FJSC 30; CAV 009 of 2015 (23 October 2015] and
When rial judge disagrisagrees with the majority of assessors hers he 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 [vide Lautabui v State [2009] FJSC 7; CAV0024.2008 (6 February 2009),
[14] A ground based on lack of cogent reasons alone would not automatically help an appellant to succeed in appeal as the ultimate test is whether the verdict recorded by the trial judge should be set aside on any of the grounds set out in section 23 of the Court of Appeal Act.
[15] On a similar ground of appeal I had the occasion to remark in Baleimakogai v State [2021] FJCA 58; AAU076.2018 (1 March 2021) as follows:
‘[18] However, it can be argued that the consequence of failure to give ‘cogent’ reasons would not necessarily guarantee success for the appellant in appeal, for this court can adequately discharge its appellant function independent of the said failure on the part of the trial judge. The argument goes further to state that section 237(4) is silent on the consequence of failure to adhere to the section by the trial judge i.e. to give ns in differing witg with the assessors............
[19] In other words, the argument goes to state that irrespective of whether the trial judge had failed to give cogent reasons in the judgment in disagreeing with the assessors, still the Court of Appeal could independently assess evidence to determine whether there is any ground enumerated in section 23 Court of Appeal Act upon which trdict should beld be set aside and if not, the verdict woul be disturbed. The appellate function is prescribed by sect section 23 of the Court of Appeal Aeal Act.’
[16] Going by the submissions of the appellant under the sole grounappeal it appears that the gist of the appellant’s co;s complaint is that the trial judge’s verdict convicting the appellant is not reasonably available on evidence whereas ‘not guilty’ verdict of the assessors is reasonably available. As stated earlier it is the judge who ultimately decides whether an accused is guilty or not and not the assessors and what matters is the verdict of the trial judge. The question that should be posed is whether the judge’s verdict is unreasonable or cannot be supported having regard to the evidence.
‘Unreasonable or cannot be supported having regard to the evidence’
[17] At a trial by the judge assisted by assessors the test has been formulated as follows. Where the evidence of the complainant has been assessed by the assessors to be credible and reliable but the appellant contends that the verdict is unreasonable or cannot be supported having regard to the evidence the correct approach by the appellate court is to examine the record or the transcript to see whether by reason of inconsistencies, discrepancies, omissions, improbabilities or other inadequacies of the complainant’s evidence or in light of other evidence the appellate court can be satisfied that the assessors, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. To put it another way the question for an appellate court is whether upon the whole of the evidence it was open to the assessors to be satisfied of guilt beyond reasonable doubt, which is to say whether the assessors must as distinct from might, have entertained a reasonable doubt about the appellant's guilt. "Must have had a doubt" is another way of saying that it was "not reasonably open" to the jury to be satisfied beyond reasonable doubt of the commission of the offence. (see Kumar v State AAU 102 of 2015 (29 April 2021), Naduva v State AAU 0125 of 2015 (27 May 2021), Balak v State [2021]; AAU 132.2015 (03 June 2021), Pell v The Queen [2020] HCA 12], Libke v R [2007] HCA 30; (2007) 230 CLR 559, >M v Th v The Queen (1991 CLR 487, 493).
[18] When the above is recalibrated to a situation where the trial judge disagrees with the assessors or the tthe trail is by the judge alone it may be restas follows. The question forn for an appellate court would be whether or not upon the whole of the evidence acting rationally it was open to the trial judge to be satisfied of guilt beyond reasonable doubt against the assessors’ opinion; whether or not the trial judge must, as distinct from might, have entertained a reasonable doubt about the accused’s guilt; whether or not it was ‘not reasonably open’ to the trial judge to be satisfied beyond reasonable doubt of the commission of the offence.
[19] However, in this case the appellant’s complaint is the lack of cogent reasons. Even there what is more important is whether the trial judge had embarked on an independent assessment and evaluation of the evidence and in the process come up with clear, logical and convincing reasons why not only was he differing from the opinion of the assessors thereby disagreeing with the assessors’ opinion but also why he was convicting the appellant.
[20] The underlying argument of the appellant’s counsel appears to be of twofold. Firstly, the counsel submits that the complainant had in examination-in-chief stated that the incident of rape and sexual abuse took place on 29 August 2018 but agreed with the defence under cross-examination that she told the police that it happened on 30 August 2018 and said under re-examination that she was not sure whether it was 29 or 30 August 2018.
[21] The trial judge had dealt with this inconstancy as follows:
[22] This inconsistency has to be considered in the context of the appellant’s own evidence where he admitted that on the night of 30 August 2018 he went to the house the complainant was staying and opened the door by putting his hand through an open window. He had also admitted that the complainant was alone in the house when he went inside. This version seems to be consistent with the account given by the complainant about what happened on that night where the appellant allegedly raped and sexually abused her. Whether it happened on 29 August or 30 August 2018 is really immaterial. The broad guideline is that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance [Nadim v State [2015] FJCA 130; AAU0080.2011 (2 October 2015)].
[23] In addition, the evidence of the complainant and PW2 had revealed that she had waited for two days (02 September 2018) for her stepbrother (PW2) to return from Viria to inform him in writing that the appellant had raped her and that she wants justice or otherwise she will kill herself. Thereafter, a prompt complaint had been made to the police and she had been medically examined on 05 September 2018. This recent complaint and the manner in which it was made lends much credibility to the complainant’s allegation against the appellant.
[24] Thirdly, the information had clearly given the period within which the rape and sexual abuse happened as between 01 August 2018 and the 31 August 2018. The appellant therefore had full notice when he faced the trial that the date relating to the allegation could be any day during that time. Thus, the complainant’s evidence that she was not sure whether it was 29 August or 30 August could never have come as surprise to the appellant or prejudiced his defense.
[25] The second aspect of the appellant’s complaint is that the trial judge had asserted in the judgment that medical evidence supported the complainant’s account of events. It is as follows:
‘13. I accept the evidence of PW4, the doctor who examined the complainant on 05/09/18. She had observed during her medical examination, a superficial abrasion below the vaginal opening which is an injury that could be inflicted during penile penetration of the vagina. More importantly, PW4 had also observed injuries on the complainant’s breasts. According to her, the bruise on the complainant’s left breast could have been caused by excessive force applied on that area by a hand or fingers and the abrasion on the right breast could be caused by fingernails. In her (PW4) opinion these injuries may have been sustained during the last 07 days from the date of examination. The complainant said that her breast got scratched by the accused’s fingernails when she pushed the accused while he was trying to grab her breasts. Therefore, the aforementioned medical findings supports the account given by the complainant.’
[26] The doctor had observed a bruise on the complainant’s left breast that could have been caused by excessive force applied on that area by a hand or fingers and an abrasion on the right breast that could have been be caused by fingernails. In the doctor’s opinion these injuries may have been caused during the last 07 days from the date of examination. 29 and 30 August 2018 fell within this timeframe. The complainant’s evidence had been that she pushed the appellant when he was trying to forcefully grab her breast and as a result, her breast got scratched by the appellant’s fingernails. Thereafter, the appellant had tried to kiss her; first on her neck, but she kept on moving the upper part of her body. Thus, obviously, the medical evidence and doctor’s opinion had been supportive of the complainant’s account of the initial attack on her.
[27] Even the superficial abrasion below the vaginal opening observed by the doctor that could have been inflicted during penile penetration of the vagina within 07 days of the examination is supportive of the complainant’s version of forced penetration. The healed hymnal laceration seen was said to have occurred more than two weeks ago. Healed hymnal laceration is consistent with the complainant having admittedly had a history of previous sexual intercourse. It does not cast doubt on her testimony on forced penetration by the appellant. Therefore, I do not see anything wrong with what the trial judge had stated at paragraph 13 of the judgment.
[28] Therefore, upon the whole of the evidence acting rationally it was open to the trial judge to be satisfied of guilt beyond reasonable doubt against the assessors’ opinion of not guilty. It cannot be said that the trial judge must, as distinct from might, have entertained a reasonable doubt about the appellant’s guilt. Nor could it be said that it was ‘not reasonably open’ to the trial judge to be satisfied beyond reasonable doubt of the commission of the offence.
[29] Therefore, I do not see any real prospect of this ground of appeal succeeding.
Order
Hon. Mr. Justice C. Prematilaka
ACTING RESIDENT JUSTICE OF APPEAL
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