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Uhi v Crown [2013] TOCA 5; AC 6 of 2012 (17 April 2013)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

AC 6 of 2012
[CR1/2010]

BETWEEN:

SIONE MALAKAI UHI
Appellant

AND :

THE CROWN
Respondent

Coram : Salmon J
Handley J
Blanchard J

Counsel : Mr. S.T. Fifita for the Appellant
Mr. A. Kefu SG for the Respondent

Date of hearing : 12 April 2013
Date of judgment : 17 April 2013

JUDGMENT OF THE COURT

[1] This appeal is against the conviction and sentence of the appellant on a charge of rape. The appeal was out of time, but leave was granted by the Chief Justice on the 18 April 2012.

[2] Shuster J found the 67 year old appellant guilty of rape of a 12 year old girl after a judge alone trial. He later sentenced the appellant to 6 years imprisonment.

[3] Although the appeal includes an appeal against conviction the appellant has not sought to provide this Court with a transcript of the evidence given at trial. In a memorandum counsel for the appellant advised that no transcript was required and that the judgment appealed against was sufficient for the purposes of the appeal.

[4] In summary the grounds of appeal are:

1. The judge should not have allowed the police to give evidence contrary to pre-circulated briefs;
2. The verdict was inconsistent with the evidence;
3. The judge should not have relied on personal experience or knowledge;
4. The judge misapplied the law as to corroboration;
5. The judge should not have advised the appellant of his legal rights when he had counsel representing him; and
6. The prosecution did not prove that the appellant (a 67 year old man) was not impotent.
   

[5] In his submissions Mr. Fifita for the appellant enlarged on the grounds of appeal. We deal below with the issues raised. He submitted the sentence should be reduced to 3 years or less.

[6] The Crown contends that no issue has been raised by the appellant sufficient to overturn the conviction, or to disturb the sentence.

Consideration

The appeal against conviction