IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 0038 of 2018
[In the High Court at Suva Case No. HAC 159 of 2017]

BETWEEN:
  APISAI RAKAVONO
Appellant

   AND:
  STATE
Respondent

Coram	: Prematilaka, JA

Counsel: Appellant in person
              : Mr. Y. Prasad for the Respondent

Date of Hearing: 22 February 2021 

Date of Ruling: 23 February 2021

RULING 

[1]	The appellant had been indicted in the High Court of Suva on one count of rape committed at Koroqaqa, Baulevu in the Central Division contrary to section 207(1) and (2) (a) and (3) of the Crimes Act, 2009.

[2]	The particulars of the offence given in the information read as follows. 

“Apisai  Rakavono  on the 6th of May, 2017 at Koroqaqa, Baulevu, in the Central Division, had carnal knowledge of AB, a child under the age of 13 years.”

[3] 	The victim had been 11 years of age at the time of the incident while the appellant was her stepfather. The trial judge had summarized the prosecution evidence as follows in the judgment.

	‘[28]	The Complainant could recall that she went to fetch firewood with her step-father, who is the accused and two of her siblings on the 5th of May 2017. They crossed the river using a bamboo craft. The accused had then sent the two siblings of the Complainant to another side of the bush to collect firewood. He then asked the Complainant to follow him. While she was following the accused, he holds her both hands and made her lie down on the trunk of a fallen tree. He then took his penis out and put it into her female private part. You may recall that she then explained that she referred her vagina as female private part. He rubbed his penis on her vagina and tried to put it inside her vagina, but he couldn’t do it as it was sore. The Complainant said that when he was putting his penis inside her vagina, she felt the soreness. He held his penis in his hand and tried to put it inside her vagina. The accused had done it for five minutes. The Complainant then saw water coming out from his penis.

[33]	You may recall that Doctor Elvira Ongbit in her evidence explained the medical findings that she found during the medical examination of the Complainant on the 10th of May 2017. Doctor Elvira explained that she found the hymen of the Complainant was intact. She has further found superficial abrasions and bruises on the inner side of the left labia minora. According to the opinion of the Doctor Elvira, one possible cause of such injuries would be an erected penis applying force or rubbing on the area. She further said that any other reasons, such as scratching or unprotected horse ridings could cause such injuries. According to the evidence given by the Doctor Elvira, it is possible to have a slightest penetration into the vagina without damaging the hymen. Having considered the nature of the injuries found in the vulva, Doctor Elvira said that she could not rule out a penetration into the vulva.’

[4]	The appellant had remained silent at the trial and not called any witnesses. In the uncontested cautioned interview produced by the prosecution, he had denied the allegation and stated that the victim had made up the story. 

[5]	At the end of the summing-up on 15 March 2018 the assessors had unanimously opined that the appellant was not guilty of rape but guilty of attempted rape. The learned trial judge had disagreed with the opinion of the assessors in his judgment delivered on 16 March 2018, convicted the appellant for rape and sentenced him on 20 March 2018 to 14 years of imprisonment with a non-parole period of 12 years.

[6]	The appellant’s untimely notice of appeal against conviction and sentence preferred in person had been signed and received by the CA registry on 09 May 2018. The delay is nearly 03 weeks. The state had treated it as a timely appeal.  The appellant had filed amended grounds of appeal on 27 August 2020 and written submissions on 02 September 2020. The state had tendered its written submissions on 21 October 2020. The appellant had responded to state’s submissions on 28 October 2020. 

[7]	Since the appellant had filed the notice of appeal in person and the delay was less than 03 weeks, it could excused [Nawalu v State [2013] FJSC 11; CAV0012.12 (28 August 2013) and Julien Miller v The State AAU0076/07 (23 October 2007)] for the purpose of considering leave to appeal.

[8]	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 for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (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 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds. 

[9]	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;  (1936) 55 CLR 499, Kim Nam Bae v The State Criminal Appeal No.AAU0015 and Chirk King Yam v The State Criminal Appeal No.AAU0095 of 2011). The test for leave to appeal is not whether the sentence is wrong in law but whether the grounds of appeal against sentence are arguable points under the four principles of Kim Nam Bae's case. For a ground of appeal timely preferred against sentence to be considered arguable there must be a reasonable prospect of its success in appeal. The aforesaid guidelines are as follows.

	(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. 

[10]	Grounds of appeal urged on behalf of the appellant are as follows.

			Grounds of Appeal 

1.	That the Learned Trial Judge erred in law and in fact by overruling the Assessors unanimous opinion of “Not Guilty” contrary to his own directions to the Assessors. 

2.	That the Learned Trial Judge erred in law and in fact in that whilst applying the laws on overruling the verdict of the Assessors, as he did, he did not give cogent reasons as to why he overruled the unanimous not guilty opinion of the three Assessors in light of the whole of the evidence presented in the trial.

3.	That the Learned Trial Judge erred in law and in fact in not directing himself and or the Assessors to refer any Summing Up the possible defence on evidence and as such by his failure there was a substantial miscarriage of justice.

4.	That the Learned Trial Judge erred in law and in fact in not adequately/sufficiently/referring/directing/putting the defence case to the Assessors.

5.	That the Learned Trial Judge erred in law and in fact to convict Appellant on the charge with one count of Rape under Section 207 (1) and (2) (a) of the Crimes Act. 

6.	That the Learned Trial Judge erred in law and in fact in failing to conclude that the elements of Rape is made out. The element of carnal knowledge was not proven beyond reasonable doubt. 

7.	That the Learned Trial Judge erred in law and in fact in failing to evaluate and conclude the difference between full penetration and attempted to penetrate.

8.	That the Learned Trial Judge erred in law and in fact to convict the Appellant on the unreliable evidence presented by the Prosecution  with no solid proof of penetration, the injuries found near her genitalia proves to be of horse riding since the Complainant’s private parts [the hymen] was fully intact as per the medical expert evidence.

9.	That the Learned Trial Judge erred in law and in fact in not considering the alternative charge of attempted Rape when all the evidence by Prosecution Assessors and the expert opinion did not prove the element of Rape. 

10.	That the Learned Trial Judge erred in law and in fact in not considering the alternative charge of attempted Rape according to Section 208 of the Crimes Act when the element of Rape could not be proven beyond reasonable doubt. 

11.	That the Learned Trial Judge had acted unreasonable when acting contrast to his instruction to the Assessors on the matter of law a fact, as shown in paragraph [3] of his Summing Up when he states; “our function are different. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on law that in this action. You must accept the law from me and Appellant direction I give you on the matter on law.”

12.	That the Learned Trial Judge had clearly stated in his instruction to the Assessors in paragraph [18] of his Summing Up..... “That if you find the Accused did not penetrate the vagina or vulva of the Complainant with his penis as charged, you are than allowed to consider a lesser alternative count of attempt to commit Rape, though it is not formerly charged in the information.”

13.	That the Learned Trial Judge erred in law and in fact when acting in breach of his own instructions and in the process had acted unreasonable in convicting the Appellant on the one count of Rape. 

14.	That the conviction and sentence is unsafe and unsatisfactory to stand in all the circumstance due to the grounds stated in this appeal submissions and the Appellant sincerely submits that the trial Judge has acted unreasonably and therefore the conviction and the sentence on the one count of Rape should be set aside. 
01st , 02nd, 05th and  06th grounds of appeal 

[9]	The appellant alleges that the trial judge had failed to adduce cogent reasons why he was differing from the opinion of the assessors on not guilty verdict on rape. 

[10]	When the trial judge disagrees with the majority of assessors 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), Ram v State [2012] FJSC 12; CAV0001.2011 (9 May 2012), Chandra  v  State  [2015] FJSC 32; CAV21.2015 (10 December 2015), Baleilevuka v State [2019] FJCA 209; AAU58.2015 (3 October 2019) and Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020)]

[11]	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.  

[12]	In a trial held by the judge with assessors, 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 Prasad v R [1980] 72 Cr.App. R. 218;  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 Rokopeta v State [2016] FJSC 33; CAV0009, 0016, 0018, 0019.2016 (26 August 2016). 

[13]	The assessors’ opinion that the appellant was only guilty of attempted rape can be due to the fact that they were not sure whether there was penetration of the vagina or vulva particularly given the medical evidence that the hymen of the victim was intact, though the trial judge had directed them that evidence of slightest penetration of the vagina or vulva was sufficient to prove penetration. Their opinion could not have been due to lack of credibility of the victim’s testimony as in that event they would not have decided the appellant was guilty of even attempted rape. 

[14]	However, the trial judge being the ultimate decider of facts had analyzed the victim’s testimony and that of the doctor in detail at paragraphs 06 - 13 of the judgment and concluded that he was satisfied that the prosecution had proved beyond reasonable doubt that the appellant had penetrated the vulva of the victim with his penis. Since the overall credibility of the victim was not in doubt what the trial judge had to do was to embark on an independent assessment and evaluation of the evidence regarding the act of penetration and give ‘cogent reasons’ founded on the weight of the evidence reflecting his views as to the credibility of witnesses for differing from the opinion of the assessors. The trial judge had discharged his duty satisfactorily and in my view his reasons are capable of withstanding critical examination in the light of the whole of the evidence presented at the trial. I am in agreement with the trial judge’s conclusion.

[15]	The observations made by the Court of Appeal in Reddy v State [2018] FJCA 10; AAU06.2014 (8 March 2018) [vide paragraph 8] and Volau v State [2017] FJCA 51; AAU0011.2013 (26 May 2017) lend enough support to the trial judge’s conclusion. In Volau the court remarked:

‘[13] Before proceeding to consider the grounds of appeal, I feel constrained to make some observations on a matter relevant to this appeal which drew the attention of Court though not specifically taken up at the hearing. There is no medical evidence to confirm that the Appellant's finger had in fact entered the vagina or not. It is well documented in medical literature that first, one will see the vulva i.e. all the external organs one can see outside a female's body. The vulva includes the mons pubis ('pubic mound' i.e. a rounded fleshy protuberance situated over the pubic bones that becomes covered with hair during puberty), labia majora (outer lips), labia minora (inner lips), clitoris, and the external openings of the urethra and vagina. People often confuse the vulva with the vagina. The vagina, also known as the birth canal, is inside the body. Only the opening of the vagina (vaginal introitus i.e. the opening that leads to the vaginal canal) can be seen from outside. The hymen is a membrane that surrounds or partially covers the external vaginal opening. It forms part of the vulva, or external genitalia, and is similar in structure to the vagina.

[14] Therefore, it is clear one has to necessarily enter the vulva before penetrating the vagina. Now the question is whether in the light of inconclusive medical evidence that the Appellant may or may not have penetrated the vagina, the count set out in the Information could be sustained. It is a fact that the particulars of the offence state that the Appellant had penetrated the vagina with his finger. The complainant stated in evidence that he 'porked' her vagina which, being a slang word, could possibly mean any kind of intrusive violation of her sexual organ. It is naive to believe that a 14 year old would be aware of the medical distinction between the vulva and the vagina and therefore she could not have said with precision as to how far his finger went inside; whether his finger only went as far as the hymen or whether it went further into the vagina. However, this medical distinction is immaterial in terms of section 207(b) of the Crimes Act 2009 as far as the offence of rape is concerned.

[15] Section 207(b) of the Crimes Act 2009 as stated in the Information includes both the vulva and the vagina. Any penetration of the vulva, vagina or anus is sufficient to constitute the actus reus of the offence of rape. Therefore, in the light of Medical Examination Form and the complainant's statement available in advance, the prosecution should have included vulva also in the particulars of the offence. Nevertheless, I have no doubt on the evidence of the complainant that the Appellant had in fact penetrated her vulva, if not the vagina. Therefore, the offence of rape is well established. It is very clear that given the fact that her body had still not fully developed at the age of 14, cries out of considerable pain of such penetration would have drawn the attention of the Appellant's wife to the scene of the offence.

[16]	In Randall (1991) 53 ACrimR 380 Cox J of the South Australian Court of Criminal 
	Appeal commented at page 382: 

'[I]t would appear that, at least for the last 150 years, the common law, for obvious practical reasons, has made no attempt to distinguish for [the purpose of proving "sexual intercourse" …] between penetration of the vulva, as denoted by the labia majora, or other lips, and penetration of the vagina itself. What little explicit authority on the point may be found in the books supports the wider notion of sexual intercourse. In Lines (1844) 1 Car & K 393; 174 ER 861, Parke B was trying a man for carnal knowledge of a female child under 10. There was evidence that the hymen of the child was not ruptured and counsel for the prisoner submitted that all the physical appearances were consistent with a failure to penetrate the vagina so that his client could not be convicted of the completed offence. The learned judge's ruling was: 
"I shall leave it to the jury to say, whether, at any time, any part of the virile member of the prisoner was within the labia of the pudendum of the prosecutrix; for it ever it was (no matter how little), that will be sufficient to constitute a penetration, and the jury ought to convict the prisoner of the complete offence." 

Lines has always been cited in textbooks and judgements dealing with the physical requirements of rape without, so far I am aware, ever attracting adverse comment […].' 

[17]	Therefore, there is no reasonable prospect of success of these grounds of appeal. 

03rd and 04th grounds of appeal 

[18]	The appellant has not demonstrated what defense the trial judge had failed to put to the assessors. The appellant’s defense as shown in his cautioned interview had been a total denial and he had called the victim’s allegation as being a made up story. When the trial judge at paragraphs 53 and 54 of the summing-up had referred his cautioned interview, which was not disputed by the defense, to the assessors and asked them to attach to it whatever weight they wished to, the assessors would have obviously seen the appellant’s total denial therein. 

[19]	Obviously, the assessors had rejected the appellant’s denial and his dismissal of the victim’s testimony as a fabrication. 

[20]	There is no reasonable prospect of success of these two grounds of appeal. 
07th ground of appeal 

[21]	There was no need for the trial judge to have evaluated the difference between full penetration and attempt to penetrate.  The assessors anyway had decided that there was attempted penetration. All what the trail judge had to decide was whether there had been even the slightest penetration of either vulva or vagina beyond the stage of the attempt. The trial judge had fulfilled this task satisfactorily having independently analyzed and evaluated the evidence.
 
[22]	There is no reasonable prospect of success of this ground of appeal.

08th ground of appeal 

[23]	The doctor was of opinion that superficial abrasions and bruises found on the inner side of left labia minora could have been caused by an erected penis and to reach the location of those injuries the penis had to go through the opening of labia majora. The doctor had not ruled out penetration into the vulva or vagina despite the hymen being intact. Therefore, taken along with the testimony of the victim that she had felt soreness when the appellant put his penis into her vagina there was clear evidence of penetration at least of vulva which is sufficient to satisfy the element of penetration. The victim’s admission that she had done horse riding did not detract the above evidence of penetration. 

[24]	There is no reasonable prospect of success of this ground of appeal.

09th and 10th grounds of appeal 

[25]	The trial judge had disagreed with the assessors obviously because he had thought that there was more than a mere attempt to commit rape. The only issue that separated the assessors’ opinion and the trial judge’s disagreement with it was the question of penetration. As pointed out above the trial judge had therefore independently analyzed the evidence including medical evidence to conclude that in fact there had been penetration of vulva which was sufficient to establish the element of penetration. Thus, as far as the trial judge was concerned attempted rape had to be necessarily ruled out as the evidence undoubtedly pointed towards penetration. By concluding in favor of the act of penetration the trial judge by necessary implication was excluding attempted rape.

[26]	 There is no reasonable prospect of success of these two grounds of appeal.

11th and 12th grounds of appeal 

[27]	The trial judge had directed the assessors as he did at paragraphs 3 and 18 in order to maintain the objective, fair and balanced nature of the summing-up. He had obviously not expressed his view on the question of penetration in the summing-up strongly and forcefully to maintain the separation of functions between the trial judge and the assessors in the trial and allow the assessors enough space for an independent decision. However, that does not mean that when it comes to his turn to agree or disagree with the assessors the trial judge is inhibited in expressing his views firmly on disputed matters.   

[28]	After delivering an objective, fair and balanced summing-up the trial had expressed his views strongly in the judgment in disagreeing with the assessors on the decisive issue of penetration. 

[29]	There is no reasonable prospect of success of these two grounds of appeal.

13th ground of appeal 

[30]	The trial judge had not acted unreasonably in convicting the appellant in as much as his decision had been based on all the evidence namely that of direct evidence of the victim, recent complaint evidence of her aunt, medical evidence etc.  

[31]	There is no reasonable prospect of success of this ground of appeal.

14th ground of appeal 

[32]	The appellant has not made any submissions as to why the sentence is wrong or demonstrated any sentencing error.  

[33]	There is no reasonable prospect of success of this ground of appeal.

[34]	In Sahib v State (supra) the Court of Appeal stated as to what approach the appellate court should take when it is complained that the verdict is unreasonable or cannot be supported by evidence under section 23(1)(a) of the Court of Appeal Act.  

‘…………..Having considered the evidence against this appellant as a whole, we cannot say the verdict was unreasonable. There was clearly evidence on which the verdict could be based…….’

[35]	A more elaborate discussion on this aspect can be found in Rayawa v State [2020] FJCA 211; AAU0021.2018 (3 November 2020) and Turagaloaloa v State [2020] FJCA 212; AAU0027.2018 (3 November 2020).  

[36]	In Kaiyum v State [2013] FJCA 146; AAU71 of 2012 (14 March 2013) the Court of Appeal had said that when a verdict is challenged on the basis that it is unreasonable the test is whether the trial judge could have reasonably convicted on the evidence before him (see Singh v State [2020] FJCA 1; CAV0027 of 2018 (27 February 2020)]. I have no doubt that in this instance the trail judge could have reasonably convicted the appellant for rape on the evidence before him.

Order 

1.	Leave to appeal against conviction is refused.
2.	Leave to appeal against sentence is refused.

 Hon. Mr. Justice C. Prematilaka
       JUSTICE OF APPEAL