IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 27 OF 2015

BETWEEN:

JOJI VEIKAUYAKI
Appellant

AND:

STATE
Respondent

Counsel : Ms. V. Narara for Appellant 
Mr. A. Singh for Respondent 

Date of Hearing : 10th December, 2015 
Date of Judgment : 12th February, 2016
 
JUDGMENT

1.	The Appellant was found guilty after a fully defended trial in the Magistrates Court of Lautoka. He was charged with one count of Rape contrary to Sections 149 and 150 of the Penal Code. Upon conviction, he was sentenced, on the 6th of March, 2015, to a term of six years two months and fifteen days' imprisonment with a non-parole period of three years.
 
2.	The petition of Appeal was filed by the Appellant in person. He engaged a Counsel from the Legal Aid Commission only for the hearing where written submissions were filed by both parties.

3.	It appears from the introductory part of the petition that the Appellant is only appealing his sentence. However, upon perusal of the grounds of appeal, it seems that Appellant is appealing both his conviction and sentence. 

4.	GROUNDS OF APPEAL

I.	That the learned Magistrate failed to consider the fact that the Appellant was unrepresented and was only represented during his bail application. 

II.	That the learned Magistrate erred in Law and in fact when he failed to consider that the Complainant had consented to having sexual intercourse and that she was intimidated by her parents to proceed with her complaint. Further, after being granted bail, the Complainant and the Appellant have been residing together.

III.	That the learned Magistrate erred in Law and in fact when he stated that the Appellant had breached the trust of the Complainant. 

IV.	That the learned Magistrate erred in Law and in fact when he failed to direct the Prosecution to present the Complainant as a witness before sentencing. 

5.	In the written submission filed, the Counsel of the Appellant submits that the Appellant has abandoned Grounds III and IV. However, no such formal application was made to that effect by the Appellant who filed the petition of Appeal in person. Therefore, Court proceeds to consider all the grounds of appeal despite the submission of the Counsel. 

GROUND I

6.	The Appellant submits that the leaned Magistrate failed to consider the fact that the Appellant was unrepresented and was only represented during his bail application.

7.	Careful perusal of the record of the Magistrates Court indicates that the Appellant was rightly explained his right to legal representation and right to access legal aid scheme of the Legal Aid Commission and, furthermore, he was in fact represented by a Counsel on several occasions, though not at the trial stage. 

8.	When the amended charge was filed, Appellant was not represented by a counsel. His rights were explained and an adjournment was given on his request to retain a counsel from the Legal Aid Commission. On the day the plea was taken he was represented by a counsel. Before the case was fixed for hearing, two adjournments had been given on account of his counsel being away. Case was fixed for hearing in the presence of his Counsel Mr. H.A. Shah. On the trial date, Appellant absconded and bench warrant was issued. His Counsel appeared for him on several occasion in his absence and finally abandoned him. The learned Magistrate had given three days to find a new counsel. Finally, he decided to represent himself at the trial. 

9.	Constitutional Right to Counsel is not absolute. Learned Magistrate had been too generous in granting three mention days to find him a new Counsel. He had deliberately waived his right. Appellant now can't blame the court for his own mistakes. 

10.	In Shankar v The State [2006] FJHC 14; CAV 0008U.2005S (19 October 2006) it was held:

"The right to Counsel under Section 28(1) of the Constitution is subject to that criterion of reasonableness. To construe Section 28(1) (d) as conferring an absolute right to counsel of choice would seriously impede the administration of justice. Such a construction would, practically, be unworkable. It is implicit in the Section the right to counsel conferred thereby is qualified by consideration of reasonableness. The Constitutional Right is one which must be exercised at the proper time. It can't be exercised on the eve of the trial to force an adjournment." 
 
11.	This observation was approved in Ramalasou v State [2010] FJHC 19; AAU 0085.2007(28 May 2010) where it was stated:

"This Court has on several occasions explained the practical limits on the right to counsel. The right to counsel is not absolute. Where an accused person is indigent, the right to be provided with representation under the Legal Aid scheme must depend on the interest of justice" 

12.	Counsel for the Appellant submits that, given the inevitable severe sentence that the Appellant could expect in a Rape case, the learned Magistrate should have considered allowing the Appellant to be assisted by a Legal Aid Counsel in his mitigation. 

13.	Court can't agree with the contention of the learned Counsel. The learned Magistrate had considered the mitigating circumstances filed by the Appellant and had given an appropriate discount on that account. The Counsel does not highlight the mitigating circumstance that the Magistrate failed to appreciate or any other ground that the Appellant could have advanced had the Appellant been represented by a Counsel at the sentencing hearing. Therefore, this ground fails.

GROUND II

14.	Further elaborating on Ground II, the learned Counsel for Appellant submits that the learned Magistrate eared when he failed, in view of the failure on the part of the complainant to make a prompt complaint to her mother after the incident, to appreciate that the admitted sexual intercourse was consensual.
. 
15.	Evidence of the Complainant adduced at the Magistracy clearly indicates that the sexual intercourse was not consensual. To justify my assertion, I quote crucial parts of her evidence: 

"He removed my shorts first and panty after. I tried to stand up but he used both hands to push my shoulders back. Then he inserted his erected penis into my vagina. …
I tried to move around and I could not. There was a tree where I could get hold of and I managed to free myself from Joji. I shouted, cried for help…..
I did not agree to what happened. I did not agree to have sex with Joji. ….I received injuries during the incident, it was on my vagina." 

16.	This is a classic case of Rape. This is how a victim of rape incident reacts when she or he is being subjected to an unwelcome sexual assault. Appellant was given right to cross examine. Not a single suggestion was put to her with regard to consent which he says he had. If she was lying, Appellant could have put his version of defence and easily discredited her. 

17.	The other point the Counsel for Appellant raised was with regard to her failure to complain to her mother promptly after the incident. Complainant's younger brother who was kept waiting in the van was crying. Her sisters were still at the river. She did not talk to any of them. She did not tell anything to anyone. Only her mother questioned. She told her what happened. Under cross examination, she said 'my sister Sala told my mother about the incident'. 

18.	Complainant did not complain to her mother about the incidents at the first available opportunity. But she related the incident to her sister Sala. 

19.	In The State v Waisea Volavola Cr. App. HAA 106/2002S Madam Justice Shameem observed: 

"Victims of sexual offences can react to the trauma in different ways. Some, in distress or anger, may complain to the first person they see. Others, who react with shame or fear or shock or confusion, do not complain or go to authority for some time. Victim's reluctance to report the incident could also be due to shame, coupled with the cultural taboos existing in her society, in relation to an open and frank discussion of matters relating to sex, with elders. It takes a while for self- confidence to reassert itself. There is, in other words, no classic or typical response by victims of Rape"

20.	There was no evidence available before the learned Magistrate for him to find that there was pressure or intimidation on the complainant in the complaining process. No question was put to her in cross examination on the basis that the complaint was made to Police under duress. 

21.	The learned Magistrate was quite right when he believed and acted upon the Complainant's evidence despite her failure to complain to her mother at the first available opportunity. To further confirm my view, I quote the following observation made by Madam Justice Shameem in Kamlesh Prasad Gautam v The State Crim. App. HAA 033 of 2007:

"Nor do I consider the lack of recent complaint to be fatal to the case. It is a fallacy to assume where there is no "hue and cry" immediately after a rape, that there was therefore no rape. Not all victims of rape can be assumed to complain of rape immediately after the event. The purpose of the law of recent complaint is to allow for the admission of a previous consistent statement of the complainant to show her consistency and to rebut allegations of recent fabrication. The lack of any recent complaint does not necessarily weaken her evidence. There was no obligation on the Magistrate to direct himself on the issue at all."

22.	Therefore that ground of appeal also fails.

GROUNDS III AND IV

23.	Counsel for Appellant submits that Grounds III and IV are now abandoned. Ground III is based on the premise that the learned Magistrate erred when he assumed a trusteeship relationship between the Appellant and the Complainant in the sentencing ruling. Evidence produced at the Magistracy clearly shows that Complainant and Accused were related to each other and she trusted the Appellant's words when she got into the van. 

24.	Ground IV is advanced on the basis that the learned Magistrate erred when he failed to call the Complainant as witness at the sentencing hearing. There is no hard a fast rule in Fiji that necessitates the presence of the Complainant at the sentencing hearing although the victim impact assessment may be relevant in sentencing. Therefore, Grounds III and IV must necessarily fail even if they were not abandoned by the Appellant. 

25.	For the reasons given, I would affirm the conviction and sentence of the Magistrates Court and dismiss the appeal. 

Aruna Aluthge
Judge

At Lautoka
12th February, 2016

Solicitors: Office of the Legal Aid Commission for Appellant
Office of the Director of Public Prosecution for State