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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 008 OF 2018
Suva High Court No. HAC 99 OF 2016
BETWEEN :
ENESHWAR RAJ
Appellant
AND :
THE STATE
Respondent
Coram : Prematilaka, RJA
Mataitoga, JA
Qetaki, JA
Counsel: Mr M. Fesaitu for the Appellant
Mr L. J. Burney (Office of the DPP) for the Respondent
Date of Hearing : 03 May, 2023
Date of Judgement : 25 May, 2023
JUDGEMENT
Prematilaka, RJA
[1] I have read in draft the judgement of Mataitoga, JA and agree that conviction on counts 2, 3 and 4 should be affirmed and appeal dismissed.
Mataitoga, JA
[2] The appellant had been indicted in the High Court at Suva on four counts of rape committed at Nasinu in the Central Division contrary to section 207(1) and (2) (a) and 207(1) and (2) (b) of the Crimes Act, 2009 respectively.
[3] The information read as follows:
COUNT 1
REPRESENTATIVE COUNT
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
ENESHWAR RAJ between the 30th day of November 2015 and the 4th day of January 2016 at Nasinu in the Central Division had carnal knowledge of RENUKA DEVI NARAYAN, without her consent.
COUNT 2
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes Act 2009.
Particulars of Offence
ENESHWAR RAJ between the 1st and 31st day of December 2015 at Nasinu in the Central Division penetrated the vagina of RENUKA DEVI NARAYAN, with an eggplant without her consent.
COUNT 3
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
ENESHWAR RAJ on the 5th day of January 2016 at Nasinu in the Central Division had carnal knowledge of RENUKA DEVI NARAYAN, without her consent.
COUNT 4
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes Act 2009.
Particulars of Offence
ENESHWAR RAJ on the 5 th day of January 2016 at Nasinu in the Central Division penetrated the vagina of RENUKA DEVI NARAYAN, with his finger without her consent.
[4] The sole witness for the prosecution was the complainant, Renuka Devi Narayan. The appellant, Eneshwar Raj, had given evidence on his own behalf. It had been admitted that the appellant and the complainant have been husband and wife for 10 years and have a 9-year-old daughter of their marriage. The prosecution had alleged that it was a case of marital rape. During the period of 30 November 2015 to 05 January 2016, the complainant and the accused were married to each other.
[5] The trial judge had summarized the complainant’s evidence as follows in the judgment:
“Between 30 November 2015 to 4 January 2016, she testified that the relationship between herself and her husband was not too good. This was due to small conflicts and arguments. During this period, they always had arguments and her husband forced her to have sex with him every night. She stated “if I deny him, he always used to force me to have sex with him every night. If I deny he always pulls my clothes off and he always makes love bites on my neck. And he won’t listen to me. He used to always have sex with me.”
Renuka explained that by sex she meant the accused inserting his penis inside her vagina. Although the accused was legally married to her, she did not want to have sex with him, and didn’t consent to have sex with him. She had told the accused that she didn’t want to have sex with him. However, the accused would not listen to her and would forcefully have sex with her. She said she felt unhappy about this. Between 30 November 2015 to 4 January 2016, nearly every night the accused would forcefully have sex with her.
On one occasion during this period, the accused had inserted an eggplant into her vagina. Renuka explained further. After returning home from work, it was night time and they were sleeping. She and her husband had arguments again. She didn’t want to have sex but the accused had forced her. He had sexual intercourse with her 2 times and after that in an aggressive manner he had inserted an eggplant into her vagina. She states that she felt something different in her vagina. She felt something hard. Different to a penis. When she got up to go to the washroom to wash herself, she had put on the lights. She had then seen the eggplant. Only at that time did she realise that her husband had inserted an eggplant in her vagina.
Renuka testified that actually she didn’t know that the accused would do such a thing as he was legally married to her. Although she had felt very bad about this incident, she didn’t want to argue with the accused as she was afraid of him. She was afraid that he would punch her. So, she kept it to herself. The complainant testified further as to the events which took place on 5 January 2016. She said it was a Tuesday. She had returned from work around 5.00-5.30 in the evening. They had their dinner and had arguments. The accused had forcefully had sexual intercourse with her and thereafter, had forcefully inserted his fingers into her vagina and kept her awake until morning. He had not let her sleep. She testified that on this day she refused to have sexual intercourse with the accused. However, he had forcefully pulled her clothes off and started having sex with her. Renuka again explained that by sex she meant the accused inserting his penis inside her vagina. Thereafter, the accused had forcefully inserted two of his fingers into her vagina. Renuka testified that after these incidents of 5 January 2016, she had been fed up with his behaviour. Therefore, she had made a complaint to the Police.”
[6] The appellant under oath had denied that he raped his wife Renuka at any point of time. He had testified that all the acts of sexual intercourse relating to the first count with her during the period 30 November 2015 to 05 January 2016 were consensual. He also had denied that he inserted an eggplant into Renuka’s vagina. He had denied having inserted his fingers into her vagina or had sexual intercourse with her against her consent on 05 January 2016. He had alleged that his wife was cheating on him.
[7] At the end of the summing-up on 03 October 2017 the assessors had unanimously opined that the appellant was not guilty of count 01 but guilty of counts 03 and 04. The majority of the assessors had opined that the appellant was guilty of count 02. The learned trial judge had disagreed with the unanimous opinion of the assessors on count 01 and agreed with them on other counts in his judgment delivered on 5 October 2017, convicted the appellant on all counts and sentenced him on 3 November 2017 to 8 years and 04 months of imprisonment each on all four counts to run concurrently with a non-parole period of 6 years and 04 months.
[8] It should be noted that in the trial, both the complainant and the appellant gave sworn evidence in court. In the case of the appellant his cautioned interview statements was also adduced in evidence at the trial.
Court of Appeal - Before Judge alone for Leave to Appeal Hearing
[9] Before the judge alone, the appellant had abandoned his sentence appeal against sentence. Counsel for the appellant [LAC] had tendered an amended notice of appeal against conviction only and filed written submissions on 13 October 2020. The State (respondent) had tendered its written submissions on 20 October 2020.
[10] The 2 grounds of appeal urged on behalf of the appellant are as follows:
[11] This was a case of “word against word”. State Counsel observed that, the assessors” opinion of not guilty in respect of count 1, would have been based on disbelieving the complainant evidence of lack of consent for acts of sexual intercourse. This should have made the trial judge to briefly assess the complainant’s and the appellant’s evidence and to set out the basis of his decision that the complainant’s version of the evidence is preferred by him. The trial judge did not do that.
[12] The court did refer to section 21(1)(b) of the Court of Appeal Act, which states, that appeal against conviction requires leave of the court. It also provided guideline case law, outlining that the test for leave to appeal is reasonable prospect of success [see Caucau v State [2018] FJCA 171 (AAU0029 of 2016); Sadrugu v State [2019] FJCA 87 (AAU0057/2015).
[13] The appellant relies on the Supreme Court decision in Lautabui v State [2009] FJSC 7 (CAV0024/2008) and Court of Appeal decision in Waininima v State [2020] FJCA 159 (AAU0142/2017) both support his contention regarding the duty of the trial judge when disagreeing with the majority of assessors. Both these cases will be discussed further, later in this judgement.
[14] Section 237(4) Criminal Procedure Act provides:
“(4) 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.”
Despite the clear wording of the provision of the statute above, it is difficult to understand why it was ignored by the trial judge.
[15] In light of the above, it was unsurprising that the Judge alone granted leave to appeal against conviction on this ground of the appeal.
Court of Appeal
[16] The appellant’s written submission that were filed in Court for the Leave to Appeal Hearing are relied upon in this full hearing of the Court. There was no new material submitted on his behalf.
[17] For the respondent, the State also relied on the same submissions it filed for the Application for the Leave to Appeal before the Judge alone.
Assessment of the Grounds of Appeal
01st ground of appeal – Failure to Provide cogent Reasons for Overturning Unanimous Verdict of Assessors
[18] The appellant’s complaint is based on paragraph 20 and 21 of the judgment. He alleges that the trial judge had failed to adduce cogent reasons why he did not accept the unanimous opinion of not guilty by the assessors on count 01. The trial judge in his judgment simply stated the following:
“[20] In this case the three Assessors were unanimous in finding the accused not guilty of count 1. Considering the totality of the evidence led at the trial, I am of the considered opinion that this is not justified. What the prosecution had to prove was just one incident of sexual intercourse, without the consent of the complainant, which took place within this period.”
[19] The essence of appellant’s complaint is that while the trial judge is at liberty to disagree with the unanimous verdict of not guilty on count 1; in doing so, he must state the reasons that caused him to make that ruling. In this case, the trial judge simply stated in his considered opinion the verdict of the assessor on count 1 was not justified. He prefaced this statement by what he referred to as ‘considering the totality of the evidence led at the trial.’ There was no outlining of what was in his consideration’ that led him to find the opinion of the assessors on count 1 not justified.
[20] The State in its written submission in responding to this complaint by the appellant first referred to the Supreme Court case of Lautabui v State [2009] FJSC 7; CAV 0024.2008 as the leading authority in Fiji on the principles covering the scope of the duty to give reasons by a trial judge when they disagree with unanimous opinion of the assessors. That case states as follows:
“[28] Section 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] 7 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".
[30] Secondly, although a judge is entitled to differ from even the unanimous opinion of the assessors, he or she must comply with the requirement of s.299 of the CPC to pronounce his or her reasons in open court. It was not disputed by the State that a failure to comply with the statutory requirement, whether because the reasons are inadequate or because they are not pronounced in open court, is sufficient, of itself, to warrant setting aside a conviction in a case where the judge overrides the opinion of the assessors.
[31] The third point is related to the other two. A person convicted of a criminal offence in the High Court has a right of appeal on any ground which involves a question of law alone: Court of Appeal Act, Cap.12, s.21(a)(a). The convicted person may appeal to the Court of Appeal on any question of fact, provided he or she obtains the leave of the Court of Appeal or a certificate from the trial judge: s.21(1)(b). An appeal to the Court of Appeal (whether as of right or after a grant of leave or of a certificate) is by way of rehearing: Setevano v State at 14. Thus, a decision by a trial Judge to disagree with the assessors’ opinion that the accused should be acquitted is subject to an appeal (albeit by leave) in the nature of a rehearing.
[32] It follows that the reasons of the trial Judge in such a case will be scrutinised closely on appeal. It is important to appreciate that one of the principal rationales for requiring trial courts sitting without juries to give reasons for their decisions is "to enable the case properly and sufficiently to be laid before the ... appellate court": Pettit v Dunkley [1971] 1 NSWLR 376 at 388. The reasons must be sufficient to fulfil that purpose
[33] The qualifications to the power and authority of a trial judge to override the opinion of assessors are closely related because an appeal by way of rehearing on a question of fact presupposes that the judge’s reasons expose the reasoning process by which he or she has concluded that the case against the accused has been proved beyond reasonable doubt. Unless this is done, the Court of Appeal may not be able to determine whether the judge erred in reaching that conclusion, much less whether he or she had "cogent reasons" for depriving the accused on the benefit of the assessors’ opinion. Further, in the absence of a cogent reasoning process in the judgment, the accused will not know precisely why the assessors’ opinion in his or her favour was not allowed to stand.
[34] In order to give a judgment containing cogent reasons for disagreeing with the assessors, the judge must therefore do more than state his or her conclusions. At the least, in a case where the accused have given evidence, the reasons must explain why the judge has rejected their evidence on the critical factual issues. The explanation must record findings on the critical factual issues and analyse the evidence supporting those findings and justifying rejection of the accused’s account of the relevant events. As the Court of Appeal observed in the present case, the analysis need not be elaborate. Indeed, depending on the nature of the case, it may be short. But the reasons must disclose the key elements in the evidence that led the judge to conclude that the prosecution had established beyond reasonable doubt all the elements of the offence.”
[21] There are two other cases, from the judgements which are useful in providing some guidance on the issue relevant here. They are:
(i) Singh v State [2020] FJCSC 1; CAV0027 of 2018
“[19] Ground (4) urged by the petitioner is that the Court of Appeal erred in fact and in law in disregarding the trial judge’s
failure to give cogent reasons in his judgment as required by section 237(4) of the Criminal Procedure Decree of 2009 for overturning
the unanimous opinion of the assessors that the petitioner was not guilty of the charge laid against him”.
[22] It is significant to note that the Criminal Procedure Decree of 2009 provides that the trial judge “shall not be bound to conform to the opinions of the assessors” and further 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 in writing and pronounced in open court. Sub-section (5) of section 237 specifically provides that:
“(5) In every such case the judge’s summing up and the decision of the court together with (where appropriate) the judge’s reasons for differing with the majority opinion of the assessors, shall collectively be deemed to be the judgment of the court for the all purposes.” (Emphasis added)
[23] These provisions and similar provisions in prior enactments have been examined by our courts in several important judgments, and it has been observed that the trial judge must have “very good reasons” for differing from the assessors. In Ram Bali v Regina (supra), it was emphasised that the trial judge should proceed on “cogent and carefully reasoned grounds based on the evidence before him and his views as to credibility of witnesses and other relevant considerations”. This latter case went up on appeal to the Privy Council, which observed that the trial judge was taking “a strong course” by differing from the unanimous opinion of the assessors, but concluded that his decision was justifiable because it was based upon his own “emphatic conclusions in regard to the evidence”. In Shiu Prasad v Regina (supra), Rokopeta v State (supra) and Likunitoga v State (supra) it was reiterated that the judge must have “cogent reasons” for differing from the assessors, this:
The requirement that a trial judge who has reasons not to agree with the majority opinion of the assessors should pronounce his reasons for differing with such opinion is a fundamental safeguard that ensures that justice is done in every case according to law. The objective of such a requirement is to explain to the assessors, the prosecution and the accused as well as to the society at large, the reasons for the decision, so that the social conscience can rest in the knowledge that justice was done. Candid reasons set out in the judgment of the trial judge, can be of great assistance when an appellate court is called upon to review the decision on appeal.
[24] In the course of its judgment in Ram v State [2012] FJSC 12, CAA 0001/2011 this Court succinctly described the role of the trial judge as well as the supervisory function of the appellate court in the following words-
“A trial judge's decision to differ from, or affirm, the opinion of the assessors necessarily involves an evaluation of the entirety of the evidence led at the trial including the agreed facts, and so does the decision of the Court of Appeal where the soundness of the trial judge's decision is challenged by way of appeal as in the instant case. In independently assessing the evidence in the case, it is necessary for a trial judge or appellate court to be satisfied that the ultimate verdict is supported by the evidence and is not perverse. The function of the Court of Appeal or even this Court in evaluating the evidence and making an independent assessment thereof, is essentially of a supervisory nature, and an appellate court will not set aside a verdict of a lower court unless the verdict is unsafe and dangerous having regard to the totality of evidence in the case.” (Emphasis added)
It is always necessary to bear in mind that the function of this Court, as well as the Court of Appeal, in evaluating the entirety of the evidence led at the trial and making an independent assessment thereof, is of a supervisory nature. Unlike in Ram v State, where this Court quashed the conviction and acquitted the accused on the basis that on the whole of the evidence led in that case, “it was not open for a judge sitting with assessors to be satisfied beyond reasonable doubt that the accused was guilty of murder”, in the instant case, this Court is confronted with the difficulty that the learned trial judge has not dealt with some material questions that arise in the case with sufficient cogency, particularly in regard to the matters already discussed in this judgment pertaining to (1) the voluntariness of the petitioner’s confession and (2) the reliability of the testimony of Sunita Devi, and a few other matters highlighted by Stock, J. under the headings “hearsay and recent complaint” and “Intent.” In other words, apart from the non-directions and mis-directions adverted to already, the learned trial judge has also fallen into error in the effective discharge of his duty of independently evaluating and assessing the evidence led in the High Court in the course of his judgment.
I am therefore of the opinion that the Court of Appeal has in all the circumstances of this case, failed to discharge its supervisory function of considering carefully whether the trial judge had adequately complied with his statutory duty imposed by section 237(4) of the Criminal Procedure Decree. Though an appellate court such as the Court of Appeal and this Court does not have the advantage of seeing the witnesses testify so as to appreciate their demeanour, it is evident on the available evidence that the trial judge had failed to effective discharge his statutory duty of evaluation and independent assessment of the evidence when differing with the unanimous opinion of the assessors that the petitioner is not guilty of murder, and the Court of Appeal erred in affirming the said decision.”
[25] The Court of Appeal in Fraser v State [2021] FJCA 185; AAU 128/2014 (5 May, 2021) held:
[23] ... ... What could be identified as common ground arising from several past judicial pronouncements 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 trail judge’s agreement with the assessors’ opinion is not viewed as a mere rubber stamp of the latter [vide Mohammed &v State [2014] FJSC 2; CAV02.2013 (27 February 2014), Kaiyum v State ] FJCA 35; 35; AAU0071.2012 (14 March 2014), and Kumar v State [2018] FJCA 136; AA2016 u30 August gust 2018)].
[24] ... ... when disagreeing with the majority of assessors. 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), Bavuka v State] FJCA FJCA 209; AAU58.2015 (3 O (3 October 2019) and Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020)].
[25] In either situation the judgment of a trial judge cannot 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.”
[26] In assessing the summing up and the judgement of the trial judge in this case, it is clear that he has failed to give reasons for his considered opinion that the assessors verdict of not guilty on count 1 was wrong. Further in reviewing both the evidence in chief and cross examination during the trial of the complainant and the appellant (accused), there were issues that should have been specifically addressed by the trial judge and which may have changed the way he summed up the evidence to the assessors, specifically with regard to count 1. But it was not to be. A fatal omission on the part of the trial judge.
[27] In Singh v State (supra) the Supreme Court stated:
“The Court of Appeal has in all the circumstances of this case, failed to discharge its supervisory function of considering carefully whether the trial judge had adequately complied with his statutory duty imposed by section 237(4) of the Criminal Procedure Decree. Though an appellate court such as the Court of Appeal and this Court does not have the advantage of seeing the witnesses testify so as to appreciate their demeanour, it is evident on the available evidence that the trial judge had failed to effective discharge his statutory duty of evaluation and independent assessment of the evidence when differing with the unanimous opinion of the assessors that the petitioner is not guilty of murder, and the Court of Appeal erred in affirming the said decision.”
[28] The failure of the trial judge to provide written reasons for his decision to overturn the not guilty verdict of the assessors on count 1 of the charge, especially in light of the evidence given by the appellant, is contrary to the requirements of section 237(4) of the Criminal Procedure Act 2009 and is unfair and lacks transparency. I find that appeal against conviction on count 1 must succeed.
Second Ground - The conviction for the second, third and fourth counts of rape are unreasonable and not supported by the totality of the evidence
[29] The difficulty with this ground is that the appellant has not made specific references to the evidence that support each of the counts separately. It would have made it possible for the court to evaluate the reasonableness or not of the evidence, if the appellant has referred to evidence supporting their claim of unreasonableness. It is sufficed to say that on the basis of the evidence adduced during the trial, it was open to the assessors return the verdict they did on counts 2, 3 and 4.
[30] The test of reasonableness of the verdict is to look at all the admissible evidence that were presented at trial and determine if there were evidence on which the verdict could be based. In R v C (1968) Cr App R 82, Widgery LJ states:
Having considered the evidence against this appellant we cannot say the verdict was unreasonable. There was clearly evidence on which the verdict could be based. Neither can we, after reviewing the various discrepancies between the evidence of the prosecution eyewitnesses, the medical evidence, the written statements of the appellant and his and his brother's evidence, consider that there was a miscarriage of justice.
It has been stated many times that the trial Court has the considerable advantage of having seen and heard the witnesses. It was in a better position to assess credibility and weight and we should not lightly interfere. There was undoubtedly evidence before the Court that, if accepted, would support such verdicts.”
In Sahib v State [1992] FJCA 24; AAU0018u.87s (27 November 1992) the Court of Appeal stated what approach the appellate court should take in the face of a challenge bases on reasonableness.
‘That leaves us to consider the evidence, including the statements, in relation to each of the two counts appealed on the ground that it does not support the convictions. How is the Court to approach this?
Section 23(1)(a) of The Court of Appeal
(a) on any such appeal against conviction shall allow the appeal if they think the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before whom the appellant was convicted should be set aside on the grounds of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal."
[31] In applying the above test to the evidence in this case as regards count 2, 3, and 4 I find the verdict was reasonable given the totality of the evidence. It was not unreasonable for the assessors and the trial judge to have believed the complainant on counts 2, 3 and 4 while rejecting denial by the appellant. There is no miscarriage of justice.
[32] The Appellant’s second ground of appeal has no merit and is dismissed.
Qetaki, JA
[33] I have considered the judgment in draft and agree with it and the reasoning.
ORDERS:
Hon. Justice Chandana Prematilaka
RESIDENT JUSTICE OF APPEAL
Hon. Justice Isikeli Mataitoga
JUSTICE OF APPEAL
Hon. Justice Alipate Qetaki
JUSTICE OF APPEAL
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