IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU 051 of 2016
[In the High Court at Suva Case No. HAC 33 of 2013]

 BETWEEN: 	
JOSEFA TUKANA
         Appellant

 AND:	
STATE
Respondent

Coram: Gamalath, JA 
           : Prematilaka, JA 
           : Bandara, JA

Counsel: Ms. S. Ratu for the Appellant 
 : Ms. S. Tivao for the Respondent

Date of Hearing: 07 February 2022 

Date of Judgment: 03 March 2022 

JUDGMENT  

Gamalath, JA

[1]	I agree with the conclusion arrived at by Bandara, JA.  

Prematilaka, JA

[2]	I have read the draft judgment of Bandara, JA and I agree with the orders proposed. 

Bandara, JA

[3]	The Appellant was charged before the High Court at Suva with one count of Rape contrary to section 207 (1) and (2) (a) of the Crimes Act 2009.  

[4]	The information read as follows:

“First Count
    Statement of Offence 

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

    Particulars of Offence 

JOSEFA TUKANA, on the 25th day of November 2012, at the University of the South Pacific, in Suva, in the Central Division had carnal knowledge of ‘S.R.’, without her consent.”

The outcome of the trial before the High Court

[5]	At the conclusion of the trial the 3 assessors unanimously opined that the accused was not guilty of the charge. The Learned High Court Judge having directed himself in accordance with his summing up and evidence adduced at the trial, overturned the assessors’ verdict, convicted the Appellant and sentenced him to a period of 12 years and 4 months imprisonment, with a non-parole period of 10 years. 

Brief summary of the facts of the case

[6]	On the 25th November 2012 at about 5.30pm the victim ‘S.R.’, who was 16 years of age at the time, had gone to the University of the South Pacific (USP), along with her cousin Paulina Cagi to meet her boyfriend Mofett William, who was a student therein occupying a room in the University’s dormitory. 

[7]	There had been three Security Officers at the gate of the USP Campus including the Appellant, and one of them had asked where they were going. Having answered the query both girls had proceeded to William’s room in the dormitory. Around 7pm Paulina had left the victim and William and gone to meet another friend occupying the same premises. Around 9pm whilst the victim and William were having sex in the room, someone had knocked on the door. 

[8]	The person knocking the door had been the Appellant who confronted them to say that the visiting hour had lapsed. The Appellant had then volunteered to escort the victim out of the University premises.  On the way, under the pretext of showing a short cut the Appellant had taken her to a small building situated in a corner of the campus which was used to store discarded things. Therein, he had forcibly had sexual intercourse with the victim against her will.  

[9]	After having sexual intercourse the Appellant had left, abandoning the victim at the scene. The victim having found the way back to the dormitory had informed both William and Paulina of the incident (Paulina had still been there at the premises, in her male friend’s room). Thereafter, the victim had spent the night in William’s room and reported the matter to the Police on the following day. 

[10]	At the trial the Appellant chose to give evidence, and had taken up the position that the complainant forced him to have sex with her in order to induce him to let her get back to the boyfriend. Accordingly, she had undressed on her own and told the Appellant, “let’s have sex, if not I will shout”. Thereafter, the victim laying herself on the table had pulled the Appellant towards her and hugged him. Apparently, the circumstances had led the Appellant to a situation where he had to have sex with the victim on her compulsion. 

The appellate process

[11]	The Appellant had raised two grounds of appeal, one against the conviction and the other against the sentence. At the hearing of the appeal before the Full Court the ground of appeal against the sentence was abandoned.  

[12]	Accordingly, the following single ground of appeal stands before this Full Court, for which leave has been granted by the single Judge of Appeal, consequent to a timely leave to appeal application.

“THAT the Learned Trial Judge erred in law and in fact when he failed to give cogent reasons for his departing from the unanimous verdict of the Assessors.”

Consideration of the ground of Appeal

“Section 237 (4) of the Criminal Procedure Act 2009 provides that;
          
  When the judge does not agree with the majority opinion of the
 assessors, the judge shall give reasons for differing with the majority
  opinion, which shall be–

          		(a) written down; and
         		(b) pronounced in open court.”

[13]	The principle underlying the above provision is well established by the case law and in Johnson v State [2013] FJCA 45; AAU 90.2010 (30 May 2013) the Court of Appeal stated the following:

“[23]  The principles relating to the overturning a verdict of the Assessors by the trial Judge as set out in S.299 of the CPC were laid down by the Supreme Court in Lautabui v State [2009] FJSC 7; CAV0024.2008 (6 February 2009).

 [28]   S 299 of the CPC recognizes that a judge has the power and authority to disagree with the majority opinion of the Assessors. When the judge disagrees with the assessors his or her reasons are deemed to be the judgment of the Court. However, the judge's power and authority in this regard is subject to three important qualifications.

 [29] 	First, the case law makes it clear that the judge must pay careful attention to the opinion of the assessors and must have "cogent reasons" for differing from their opinion. The reasons must be founded on the weight of the evidence and must reflect the judge's views as to the credibility of witnesses: Ram Bali v. Regina [1960] FLR 80 at 83 (Fiji CA), affirmed Ram Bali v. The Queen (Privy Council Appeal No. 18 of 1961, 6 June 1962); Shiu Prasad v. Reginam [1972] 18 FLR 70, at 73 (Fiji CA). As stated by the Court of Appeal in Setevano v. The State [1991] FJA 3 at 5, the reasons of a trial judge: "must be cogent and they should be clearly stated. In our view they must also be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial.”

[14]	In Saukuru v Reginam [1981] FJCA 18; [1982] 28 FLR 6 (27 November 1981) it was held that:

“….when a judge adopts what the Privy Council called a strong line and overrules unanimous assessors, we agree with the decided cases that his reasons must be cogent….and his own approach to the relevant law should be impeccable. As to the first we consider this…a case in which……………a mere summation of the evidence was insufficient…”

[15]	 The Defence in it’s written submission states that:

“6.2	At paragraph 13 of the judgment the learned trial judge whilst not agreeing with the Assessors guilty verdict said;

“I find the complainant a credible witness and I accept her evidence without any reservation. I find the unanimous opinion of the assessors that the accused is not guilty is perverse. I am satisfied that the prosecution has proved all the elements of the offence of rape as charged beyond reasonable doubt.”

6.3	It seems that the Learned Judge only considered the evidence of the complainant to come to the conclusion that the assessor’s verdict were perverse which is why he overturned the same. We humbly submit that there was no consideration in totality of the evidence by the Learned Judge prior to deciding against the unanimous verdict of the assessors. It is accepted that he mentioned the credibility of the complainant however what is disputed is the consideration in totality of the evidence, therefore his reasoning for departing from the assessors verdict is not sufficient reasoning.” 

[16]	However, it clearly appears that in paragraphs 6, 7, 8 and 9 of the judgment the Learned High Court Judge has aptly analysed the evidence of the Appellant in the following manner:
	
“6.	The evidence of the accused was that the complainant forced him to have sex with her. In his evidence he said that the complainant was following him to the main gate and when they were close to the main gate he diverted to do his routine checks as a security officer. He said that he expected the complainant to go to the main gate. According to the accused, complainant had followed him and undressed herself and had told him “let’s have sex, if not I will shout.” Complainant had layed on the table saying that, and had pulled him and hugged him. He said that he did not want to lay on her. He said that he had sexual intercourse for about 2 minutes with her. 

7.	The complainant had been undressed with the boyfriend in his room when the accused came and asked her to get dressed, leave the room and to follow him. It is also not in dispute that the accused diverted his route instead of going to the main gate, although he says that it was for his routine checks. The evidence was that the accused had no official duty to look after the dormitory area that the complainant’s boyfriend William stayed. However, he says that the other security officer who allowed the complainant in, wanted him to go and get the complainant and Paulina back.

8.	It is quite natural that the complainant wanted to go back to her boyfriend. It is highly improbable that the complainant offering sex to the security officer for her to get back to the boyfriend. 

9.	If she forced herself on the accused and if she offered sex to the accused she wouldn’t have gone back to her cousin Paulina and tell her about the incident because it was only between the accused and the complainant and no one would have seen or known it. Paulina gave clear evidence as to how the complainant looked like when she came to her. She had been crying, looked scared and had been breathing heavily.”

[17]	In paragraph 13 of the judgment the Learned High Court Judge stated:

“13.	I find that the evidence of the accused that the complainant offered sex, and that she forced him to have sex with her was far from the truth. I believe the complainant when she said that it was without her consent that the accused inserted his penis into her vagina. I find the complainant a credible witness and I accept her evidence without any reservation. I find that the unanimous opinion of the assessors that the accused is not guilty is perverse. I am satisfied that the prosecution has proved all the elements of the offence of rape as charged beyond reasonable doubt.”

[18]	In relation to the demeanour and the deportment of the victim and her vulnerability the Learned High Judge makes observations in paragraph 10 and 11 of the judgment in the following manner:

“10.	I observed the demeanour and the deportment of the complainant when she testified in court. She was consistent and confident. I find no reason to disbelieve her evidence that the accused forcefully had sexual intercourse with her.

11.	It is obvious that the accused took advantage of the vulnerability of the complainant at that point in time who was 16 years old then. That is why he diverted to a different route telling the complainant that he would show a short cut so that he could take the complainant to a more isolated place.”

[19]	The Learned High Court Judge had further given cogent reasons for his decision in paragraph 4 and 5:

“4.	It is not in dispute that the complainant entered the USP from the main gate to see her boyfriend with her cousin Paulina. She was permitted to enter by the security officers at the gate when the accused was also present. It is also an undisputed fact that the accused went to the complainant’s boyfriend’s room at around 9pm, at the time the complainant was having sex with her boyfriend alone in the room and that they were undressed. The accused told them that the visiting hours have passed and asked complainant to follow him to the main gate. It is also an undisputed fact that the complainant kept on pleading with the accused to let her go back to her boyfriend and that the accused refused. 

5.	The evidence of the complainant was that when she was following the accused, he told her that he would show her a short cut if she wanted to come to see her boyfriend. Her evidence was that the accused took her to a vacant building and forcefully removed her clothes, removed his pants and raped her. She said that she struggled. She said that she did not shout as no one would have heard at that time. Accused had raped her and gone. Then she had gone to her boyfriend and also to her cousin Paulina and had told them the incident. Paulina also testified that at about 10pm, when she was with her friend Brian, the complainant knocked at the door and told her about the incident. Paulina said that the complainant was crying, she looked scared, and was breathing heavily.”

[20]	The forgoing reasons and others reflected in the judgment of the Learned High Court Judge are cogent enough to meet the standard set by both statutory and common law on the impugned issue. The ground of appeal has no merit. 

[21]	In Sharma v State;[2017] FJSC 5; CAV 0031.2016 (20 April 2017) the Supreme Court of Fiji observed at paragraphs 35 and 38, under what circumstances an Appellate Court should disturb the findings of an original Court:

“35.	…It is well settled principle that an appellant court should not disturb the findings of fact by the trial judge unless it can be shown that a misdirection or non-direction relied upon had caused grave prejudice to the accused in turn resulted in serious miscarriage of justice.’

38.	…In addition the trial judge would have had the benefit of observing the demeanour and the deportment of the witnesses before deciding to act on the evidence. As such I am of the view that this court ought not to disturb such findings unless the petitioner is capable of establishing a grave miscarriage of justice had occurred.”

[22]	In the light of the foregoing reasons I find no reason to interfere with the findings of the High Court. 

Orders of the Court

1)	Appeal dismissed.
2)	Conviction and Sentence affirmed. 

						Hon. Mr. Justice S. Gamalath
JUSTICE OF APPEAL

		Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL

		Hon. Mr. Justice W. Bandara 
JUSTICE OF APPEAL