|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 015 of 2020
[In the High Court at Suva Case No. HAC 94 of 2017]
BETWEEN:
MIKAELE RADRODRO
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, ARJA
Counsel: Mr. M. Fesaitu for the Appellant
: Ms. S. Shameem for the Respondent
Date of Hearing: 13 December 2021
Date of Ruling: 14 December 2021
RULING
[1] The appellant had been indicted in the High Court at Suva on two counts of sexual assault contrary to section 210 (1) (a) of the Crimes Act, 2009 and one count of rape contrary to section 207 (1) and (2) (b) of the Crimes Act, 2009 committed on 06 March 2017 at Raiwai, Suva in the Central Division.
[2] The information read as follows:
‘COUNT ONE
Statement of Offence
SEXUAL ASSAULT: Contrary ttion 210 (1) (a) (a) of the Crimes Act 2009.
Particulars of Offence
MIKAELE RADRODRO, bn the 6th/sup> day of Marc7, at Raiwai, Sui, Suva, in the Central Division, unlawfully and indecently assaulted TV by fondling her bher breasts.
i>Statement of Offence
SEXUAL ASSAULT: Contrary to Sect Section 2)0 (1) (a) of the Crimes Act 2009.
Particulars of Offence
MIKAELE &#ADRODRO , <o 6 th day of March 201 Raiwai, Sui, Suva, in the Central Division, unlawfully and indecently assaulted TV ckingnihe nipples of heof her breasts.
Statement of Offence
RAPE:/b>
Particulars of Offence
MIKAELE RADRODRO ,><b> the 6tsup>th day of 2017, at Raiwai, Sui, Suva, in the Central Division, penetrated the vagina of TV wis finger, without hert her consent.’
[4] The appellant in person appealed against conviction and sentence in a timely manner (28 Jan2020) Legal Aid Commission has tendered amended grounds of appeal against conviction aion and wrnd written submissions on 25 August 2021. The LAC had tendered to court on 25 August 2021 separate written submissions on more grounds of appeal against conviction settled in person by the appellant who had also filed an application for bail pending appeal on 20 October 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;
(i) Acted 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. “
[e The grounds of appeal urged on behalf of the appellant against conviction and sentence are as follows:
Ground 1 – by LAC
THAT the learned trial Judge erred in d in law and in facts having misdirected the assessors and bring himself at paragraph 17 of the summing-up stating that;
‘If so, you should also consider whether she made that complaint without delay and whether she sufficiently complained of the offence the accused is charged with’
Grounds - by the appellant
Ground A
THAT the Learned Trial Judge erred in law to consider that Prosecution had failed to prove their case against the appellant on reasonable doubt.
Ground B
THAT the Learned Trial Judge erred in law and in fact in not adequately directing himself and or the assessors the significance of Prosecution witnesses conflicting evidence and inconsistency during trial.
Ground C
THAT the Learned Trial Judge erred in law and in fact in not directing himself and or the assessors on previous inconsistent statements by Prosecution witness PW1 and PW2.
Ground D
THAT the Learned Trial Judge erred in law and in fact in not directing himself and or the assessors regarding identifying the appellant in dock.
Ground E
THAT the Learned Trial Judge erred in law and in fact in not directing himself and or the assessors on the guidelines under the: ‘R. v Turnbull Principle on Identifying Evidence.
Ground F
THAT the Learned Trial Judge erred in law and in fact in not directing himself and or the assessors to refer in the Summing Up on the possible defence evidence and as such by his failure, there was a substantial miscarriage of justice.
Ground G
THAT the Learned Trial Judge erred in law and in fact in not directing himself and or the assessors to refer in the Summing Up on the possible defence evidence and as such by his failure, there was a substantial miscarriage of justice.
Ground H
THAT the Learned Trial Judge erred in law in not allowing and directing himself and or the assessors to consider and to determine the Colonial War Memorial Hospital (CWMH) MSP Clinic Medical Examination Result Report of the Complainant (PW1/TV) on the 8th March, 2017 by one Doctor Shelvin Kapur, during trial.
Ground I
THAT the Learned Trial Judge erred in law and failed to consider the inconsistency in the prosecution evidence of the complainant (PW1/TV) with the time framed was 10.00am – 11.00am of the 6th March, 2017.
Ground J
THAT the Learned Trial Judge erred in law in not directing himself and or the assessors properly on the inconsistency and contradicting evidence stated by the complainant (PW1/TV) while giving evidence in Court during trial.
Ground K
THAT the Learned Trial Judge erred in law to proceeding the trial in an unfair manner where the appellant was without knowledge of law and unaware of preparing his defence in criminal proceeding.
Ground L
THAT the Learned Trial Judge erred in law to proceeding the trial in an unfair manner where the appellant was without knowledge of law and unaware of preparing his defence in criminal proceeding.
Sentence appeal
THAT the sentence imposed on the appellant is harsh and excessive.
Ground M
Fresh evidence application
Ground N
Bail pending appeal
[8] The trial judge had summarized the prosecution evidence and defense position in the sentencing order as follows:
‘[5] rosecution, in support port of their case, called the complainant TV, and her aunt, Marica Bogiva. You exercised your right to remain silent.
[6] The complaina your niece and is now 22 y 22 years of age. Her date of birth is 24 May 1997. Therefore, during the time of the alleged offences, shld have been 19 years old (That is an agreed fact as well).
[7] <
[8] Italso proved dued during the trial that, on the 6 March 2017, at Raiwai, Suva, in the Central Division, you raped the complainantenetrating her vagina with your finger without her consent.’
[9] The The judgment has the following summary of the evidence.
[12] In terms o proviprovisions of Section 135 of the Criminal Procedure Act No. 43 of 2009 (“Criminal Procedure Act”), the prosecution and the defence have consented to treat the following facts160;“Agreed FactsRs” without placing necessary evidence to prove them:
[13]
[14] Tmplainant is nois now ars o. Her date of birf birth is 24 May 1997. Therefore, during ring the time of the alleged offences, she would have been 19 years old (Ts an agreed fact as well).
[15] <
[16] The cinantified fied as to how the accused had unlawfully and innd indecently fondled her breasts. She also testified as to how the accuse unlawfully and indecently sucked the nipples of her breasts. Further the complainant clearclearly testified as to how the accused had forcibly penetrated her vagina with his finger.
[17] Prosecut> <160;witness Marica Bogiva, a paternal aunt of the complainant, testified as to how the complainant had come to her house around 10.00 in the night oarch The witness said that the complainant had then then told her that she was in one of the rohe rooms (in the accused’s and her aunt Sera’s house) lying down there when Mika (the accused) had entered the room. When Mika entered the room he had closed the room door and he went straight to her and lay on her. She said when he lay on her he started to kiss her and started touching her breasts. Then he had tried to remove her trousers. The witness said that the complainant kept on crying while relating this story to her.’
[10] The appellant had remained silent at the trial and not called any witnesses.
01st ground of appeal
[11] The appellant’s complaint emanates from the directions on recent complaint evidence at paragraphs 17-19 of the summing-up. He asserts that both the complainant and her aunt Marica Bogiva had only testified to the acts of sexual assault and not to the act of rape and therefore the impugned directions should have been confined only to the two acts of sexual assault and not rape.
[12] However, the two acts of sexual assault and rape in this case had occurred in the course of the same transaction; literally one after another. The victim of a sexual abuse need not reveal every detail of the incident or every legal ingredient of an offence (for almost all victims would not be aware of legal definitions of criminal offences or the ingredients constituting them) but should reveal only sufficient information as to the offender’s sexual conduct, particularly when several acts of sexual abuse take place in one and the same transaction in a chain of events. The reason is that the only purpose of recent complaint evidence is to test the consistency of the victim and thus her credibility in the overall context; not in a compartmentalized set-up and not in relation to every successive offence or its respective ingredients. This is the rationale of recent complaint evidence.
[13] Therefore, trial judge’s directions paragraphs 17-19 of the summing-up are permissible and cannot be termed as an error in terms of Raj v State [2014] FJSC 12; CAV0003 of 2014 (20 August 2014).
[14] On the other hand, the first complaint was a prompt one and there is nothing to indicate that the complainant had come out with the rape allegation for the first time at the trial. It does not appear that the complainant had been asked to explain by the appellant as to why she had failed to inform her aunt of the act of rape. Further, recent complaint evidence was not substantive evidence of the incident but only of assisting the direct evidence of the complainant in terms of her credibility. The case against the appellant would succeed or fail on her own evidence. Even if both the complainant and her aunt Marica Bogiva had only testified to the sexual assault and not the rape, it would not have the effect of adversely impacting the verdict for rape as the complainant had clearly given evidence of the act of digital rape by the appellant.
[15] There is no reasonable prospect of success under this heading.
[16] Considering the rest of the grounds of appeal filed in person by the appellant, some of which are repetitive and some contain submissions on other grounds of appeal as well, it is convenient to deal with them under the following topics as they embody all the grounds urged by the appellant.
Delay in reporting (vide paragraphs 8-11 of the appellant’s written submissions)
[17] The main plank of the appellant’s submission is that the complainant had delayed making the complaint to her aunt because the allegations were false and fabricated.
[18] In the first place, the first complaint had been made on the same day around 10 pm. Her movements from the time of the incident between 10-11 am have been explained by her and it does not appear that she had been seriously challenged on such evidence. There is also nothing to indicate that she had been challenged on the alleged delay either. If an accused seeks to impeach the credibility of a victim on the basis of belated reporting, he must confront the witness on that aspect and allow an opportunity for the victim to explain, if possible. Thus, it is essentially a trial issue that should be canvassed in the lower court.
[19] The test in assessing the effect of any delay in reporting is the totality of circumstancet west where it is examined to see whether the complaint was made at the first suitable opportunity within a reasonable t160;or whether there was an explonation for the delay (State v &160; Serelevun&#/b>] FJC;41.20 October 2018). ‘First irst availavailable able opporopportunity’ or ‘reasonably presented opportunity’ is not necessarily the numerical first opportunity (see Natuitagalua v State [2020] FJCA 164; AAU164.2016 (14 September 2020). This is why any alleged delay should be always canvassed as a trial issue and in this case the appellant has not done so possibly because the delay by itself was not worthy of being challenged and reasons for the complainant making the complaint to her aunt in the night were obvious. Yet, the trial judge had given his mind to this aspect at paragraph 18 of the summing-up and left it with the assessors.
[20] There is no reasonable prospect of success based on the alleged delay in the first complaint.
Lack of corroboration of the complainant’s evidence (vide paragraphs 12-14, 27-30, 49 and 52-65 of the appellant’s written submissions)
[21] The trial judge had addressed the assessors on this topic at paragraph 82 and directed himself at paragraph 19 of the judgment.
[22] It is trite law that there need not be corroboration of the evidence of the victims of offences of sexual nature (vide section 129 of the Criminal Procedure Act) either by way of medical evidence or eye-witnesses. No warning is required on lack of corroboration either.
[23] There is no reasonable prospect of success based on lack of corroboration.
Prior inconsistent statements (vide paragraphs 15-20, 36-37, 48, 50-521 and 84-99 of the appellant’s written submissions)
[24] The appellant seeks to impeach the credibility of the complainant on the basis of alleged previous inconsistent statements.
[25] The trial judge had addressed the assessors as to how they should approach inconsistencies at paragraphs 20-22. The crucial issue is whether the alleged inconsistencies pointed out by the appellant are so material as to affect the credibility of the complainant. In other words, whether the alleged contradictions and inconsistences go to the root of the prosecution case as to discredit the complainant [see Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] AIR 753, 1983 SCR (3) 280, Nadim v State [2015] FJCA 130; AAU0080.2011 (2 October 2015) and T v State [2016] FJCA 117; AAU.0008.2013 (30 September 2016)].
[26] In my view, they were not capable of creating a reasonable doubt in the evidence of the complainant and therefore, there is no reasonable prospect of success based on alleged inconsistencies in the complainant’s evidence. Such inconsistences are bound to happen in the evidence of any human witness and it would be almost impossible for any victim of a sexual crime to give ‘perfect’ evidence due to many factors such as poor memory, lapse of time etc.
Agreed facts (vide paragraphs 2-26 and 32-33 of the appellant’s written submissions)
[27] The appellant complains that the trial judge had forced him to sign the agreed facts coupled with an allegation that the prosecution and the victim had produced a tampered birth certificate.
[28] The appellant had been represented by counsel when agreed facts were submitted to court and his counsel had singed them on 14 September 2017. The appellant submits that the complainant’s birthday was 24 May 1997. The agreed facts state that she was 19 years of age at the time of the incident. The trial judge had stated at paragraph 72 of the summing-up that the complainant’s birthday was 24 May 1997 and also stated at paragraph 14 of the judgment that therefore she would have been 19 years of age at the time of the incident.
[29] There was no amended agreed facts as contended by the appellant but only an amendment had been made to original agreed facts to change the age of the complainant at the time of the incident from initial 18 years to 19 years in the agreed facts. This difference hardly matters in the matter of conviction.
[30] There is no merit in this complaint.
Dock identification (vide paragraphs 38-45 of the appellant’s written submissions)
[31] The appellant submits that the trial judge had not directed the assessors and himself on dock identification.
[32] This complaint is completely devoid of any merits. The identity of the perpetrator or identification of the appellant as the offender was never in issue [see Waqaninavatu v State [2020] FJCA 115; AAU0057.2018 (27 July 2020)]. Agreed facts 3, 4 and 7 clearly put the issue of identification beyond a shade of doubt.
[33] There is no merit at all in this complaint.
Defense case not put to the assessors and not considered by the trial judge (vide paragraphs 38-45 of the appellant’s written submissions)
[34] The appellant submits that the trial judge had not adequately directed the assessors and himself on the defense case.
[35] In the light of the totality of the summing-up and the judgment and in particular paragraphs 75 and 82 of the summing-up and paragraph 19 of the judgment this criticism cannot be valid. The appellant remained silent but cross-examined the complainant on his total denial. That was his defense.
[36] There is no merit in this complaint.
Medical report (vide paragraphs 72-81 of the appellant’s written submissions)
[37] The appellant’s argument is that the trial judge had not considered the medical report of the complainant while assessing her evidence.
[38] However, the prosecution had not produced the complainant’s medical report at the trial. Nor had the appellant done so. Neither party had called the doctor who had prepared the medical report either. Thus, there was no medical evidence before court for the trial judge to consider. The fact that the medical report was part of the disclosures does not mean that it automatically becomes evidence in the case [see Bureta v State [2020] FJCA 42; AAU042.2016 (21 April 2020)].
[39] The appellant’s contention is misconceived and has no merit.
Lack of representation at the trial (vide paragraphs 102-129 of the appellant’s written submissions)
[40] The appellant finds fault with the trial judge for having conducted the trial without affording him legal representation or adequate time to prepare for trial.
[41] This court does not have the trial proceedings at this stage but the respondent had given a summary of what transpired from the beginning to the end of the proceedings in the High Court and going by that, I do not see any basis to conclude that the appellant had been deprived of the right to legal representation and thus a fair trial.
[42] On 16 September 2019 the appellant had informed court that he had withdrawn from his counsel and was representing himself and he was armed with all the required documents. He had on 14 October 2019 confirmed that he was relying on the agreed facts already filed by his previous counsel though he was appearing in person. He even had the assistance of a ‘friend’ seated next to him during the trial (except during the complainant’s evidence). The trial actually commenced on 05 December 2019 and concluded on 12 December 2019. During this period the appellant was on bail. Sentencing process was concluded on 13 February 2020 with the Legal Aid Commission assisting the appellant. Thus, the appellant had ample time to get ready for the trial.
[43] Right to legal representation or counsel is not absolute and lack of legal representation is not always or necessarily fatal to a conviction obtained after a fair trial [see Prasad v State [2018] FJCA 152; AAU0010.2014 (4 October 2018), Naio v State [2020] FJCA 171; AAU113.2017 (17 September 2020)].
[44] In the circumstances, it appears that the appellant’s complaint is an afterthought and lacks merit.
Sentence appeal
[45] The appellant’s initial appeal was against sentence too. However, he had not pursued it thereafter but no abandonment of the sentence appeal had been sought either.
[46] I have examined the sentencing order but cannot see any sentencing error. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered (vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range [Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015)].
[47] The appellant’s sentence lies in the middle of the sentencing tariff for adult rape namely between 07-15 years of imprisonment
[vide Rokolaba v State [2018] 12; CAV0011.2017 (26 April 2018) following State v Ma/u>> [2004] FJHC 338]. Thus, sentence appeal has no reasonable prospect of success inal.
b>
[48] Any application for fresh application has to be made before the full court and this court has no jurisdiction to deal with it at the leave to appeal stage.
Ground N- Bail pending appeal application
[49] The legal position is 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 namely (a) the likelihood of success in the appeal (b) the likely time before the appeal
hearing and (c) the proportion of the original sentence which will have been served by the appellant when the appeal is heard. However,
section 17(3) does not preclude the court from taking into account any other matter which it considers to be relevant to the application.
Thereafter and in addition the appellant has to demonstrate the existence of exceptional circumstances which is also relevant when considering each of the matters listed in section 17 (3). Exceptional circumstances may include a very
high likelihood of success in appeal. However, an appellant can even rely only on ‘exceptional circumstances’ including
extremely adverse personal circumstances when he fails to satisfy court of the presence of matters under section 17(3) of the Bail
Act [vide Balaggan v The State AAU 48 of 2012 (3 December 2012) [2012] FJCA 100, Zhong v The State AAU 44 of (15 July 2014), <4), Tiritiri v State [2015] 95; AAU09.2011 (17 July 2015), Ratu Jope Seniloli & Ors. v The State> AAU41 of 2004 (234 (23 Au2004), Ranigalnigal v State [2019] FJCA 81; AAU0093.2018 (31 May 2019), Kumar v State [2013] FJCA AU16.2013 (17 June 2013), Qurai v State [2012[2012] FJCA 61; AAU36.2007 (1 October 2012), Simon John Macartney v. The State Cr. App.AAU0103 of 2008,
[50] 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 ‘high likelihood of success&cess’, then the other two matters in section 17(3) need to be considered, for otherwise they have no direct relevance, practical purpose or result.
[51] If an appellant cannot reach the higher standard of ‘very high likelihood of success’ for bail pending appeal, the court need not go onto consider the other two factors under section 17(3). However, the court may 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’.
[52] I have already held that the appellant’s appeal against conviction and sentence has no reasonable prospect of success and therefore, his appeal obviously does not reach the higher threshold of ‘very high likelihood of success’. Neither has he demonstrated other exceptional circumstances to warrant bail pending appeal independent of the requirement of ‘very high likelihood of success’
Cost against State
[53] Any application for cost by the appellant could be entertained only by the full court and not by the single Judge at this stage. In any event, I do not see any prospect at all for the appellant to be awarded cost (vide Macartney v State [2010] FJCA 30; AAU00103.2008 (5 July 2010) and State v Basa [2021] FJCA 179; AAU084.2011 (29 April 2021).
Orders
Hon. Mr. Justice C. Prematilaka
ACTING RESIDENT JUSTICE OF APPEAL
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJCA/2021/245.html