Court of Appeal of Fiji

[4] The appellant in person appealed agaconviction and sentence in e in a timely manner (14 January 2019). The Legal Aid Commission has tendered amended grounds of appeal againstiction and sentence and wrid written submission on 28 May 2021. The state had filed its written submissions on 15 November 2021.

[5] In terms of section 21(1)(b) and (c) of the Court of Appeal Act, the appellant could appeal against conviction and sentence only with leave of court. The test in a timely appeal for leave to appeal against sentence is ‘reasonable prospect of success’ [see Caucau v State [2018] FJCA 171; AAU0029 of 2016 (04 October 2018), Navuki v State [2018] FJCA 172; AAU0038 of 2016 (04 October 2018) and State v Vakarau [2018] FJCA 173; AAU0052 of 2017 (04 October 2018), Sadrugu v The State [2019] FJCA 87; AAU 0057 of 2015 (06 June 2019) and Waqasaqa v State [2019] FJCA 144; AAU83 of 2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 (15 July 2014) and Naisua v State [2013] FJSC 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds [see Nasila v State [2019] FJCA 84; AAU0004 of 2011 (06 June 2019)].

[6] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King [1936] HCA 40;  ref="http://www.pwww.pwww.paclii.org/cgi-bin/LawCite?cit=%281936%29%2055%20CLR%20499?stem=&synonyms=&query=leave%20to%20appeal%20against%20sentence" title="View LawCiteRecord">(1936) 5 499, Kim Nam Baem Bae v The State Criminal ApNo.AAU0015 and Chirk King Yam v The State Cri Appeal No.AAU0095 of 20of 2011). The test for leave to appeal is not whether the sentence is wrong in law but whether the ds ofal against sentenentence are arguable points under the four principles of Kimu>Kim Nam < case. For and of appeal peal timely preferred against sentence to be considered arguable there must be a reasonable prospectts su in appeal. The aforesaid guidelines are are as follows:

(i) Acted upon upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.

he groundsounds of appeal urged on behalf of the appellant against conviction and sentence are as follows:

Ground 1 (Conviction)

THAT tarned Trial Judge erred in d in fact and in law when he did not independently assess all the evidence adduced during trial and in not doing so resulted in the conviction being unsafe and further causing a grave miscarriage of justice.

Ground 2 (Sentence)

THAT the sentence imposed on the appellant is harsh and excessive.

[8] The trial judge had summarized the prosecution evidence and defense position in the summing-up as follows:

23. You have heard the evidence presented by the prosecution. The prosecution presented the evidence of three witnesses, including the complainant. The complainant and the accused were living in the same village. The complainant is living with his two siblings at their grandparent’s house. The accused is one of their neighbours. On this particular day, the complainant and one of his siblings were raking, when the accused came and asked them to come and buy ice blocks. They had then gone to the house where the accused had sold them ice blocks. Having obtained the ice block, the sibling had ran away from the house. The accused then had closed the door and put his pants down. He had then asked the complainant to lie down and then penetrated his penis into his anus. I trust that you recall the words used by the complainant to explain this incident. The complainant said that the accused poked his “goli𔃰into hiso his buttock”. The complainant explained that it was painful. The accused had then put his pants on and askedcomplainant to put his pants on. He had then taken the complainant to the bathroom. On the the way to the bathroom, the accused had taken a branch of a tree and assaulted the complainant with it. The accused then put the complainant into the bathroom and swore at him.
    
24. The complainant had gone back home after this incident and informed his grandmother about this incident. You have heard the evidence of the grandmother, where she explained that she saw the complainant was crying in the house when she was washing in the bathroom. The complainant had told her that the accused penetrated his penis into his anus when she inquired about the reason for his crying. She had noticed blood in his backside. The grandmother had then taken the complainant to the police station, and then to the hospital for medical examination.
    
25. I now take your attention to the evidence given by the grandmother, stating that the accused had approached her once she received summons to appear in court. The accused had approached and requested her not to take the complainant to the Court. Instead, he had requested the grandmother to inform the Court that the complainant had gone somewhere during his school holidays.
    
26. Doctor Alofa Funaki in her evidence explained the finding that she made during the medical examination of the complainant on the 16th of July 2017. She tendered the medical report that she made based on those findings as prosecution exhibit. You may recall that the Doctor explained the findings which she has recorded in the medical report under the headings D12, D14, D16 and the appendix.
    
27. You have heard that the learned counsel for the prosecution cross examined the witnesses of the prosecution. She has specifically asked the complainant that the accused was sleeping at that time and this alleged incident, that the complainant was telling, had never taken place. The complainant denied that preposition of the defence and said that the accused had inserted his anus with the penis of the accused.
    

[9] The appellant had remained silent at the trial and not called any witnesses.

01^st ground of appeal

[10] The appellant submits that the learned trial judge had not independently assessed the evidence in the judgment and he had not substantially considered the defense case.

[11] The applicable law 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 trial judge’s agreement with the assessors’ opinion is not viewed as a mere rubber stamp of the latter [vide hammed v Stat State [2014] FJSC 2; CAV02.2013 (27 February 2014), Kaiyum v Stu>&#1b>[2014] FJCA 35; AAU0071.2012 (14 March 2014),;Chandra v &#16te;#160; <160;[2015] FJSC 32; CAV21.2015 (10 December 2015) and Kumarate&#160 u>Fraser v State [2021] FJ5; AA2014 (5 May 2021)2021).