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Naikawakawavesi v State [2014] FJCA 155; AAU36.2013 (19 September 2014)

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

Criminal Appeal No. AAU0036 2013
[High Court App. No. HAA 009 of 2011S]

BETWEEN:

NIMILOTE TAMANI NAIKAWAKAWAVESI
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Appellant in Person
Mr. Y. Prasad for the Respondent

Date of Hearing : 15 August 2014
Date of Ruling : 19 September 2014

RULING

[1] The appellant was charged with one count of rape contrary to sections 149 and 150 of the Penal Code. He elected to be tried in the Magistrates' Court. Following a trial, he was convicted and sentenced to 7½ years' imprisonment with a non-parole period of 5 years.

[2] The appellant was convicted on the complainant's evidence. The complainant was a 29 year-old woman. The incident happened when she was walking home alone after a drinking party on the early hours of 15 July 2007. The complainant said the appellant approached her and punched her several times until she fell down on the ground. He then dragged her further into the bushes and forcefully removed her clothes. He stuffed a cloth into her mouth and then raped her. When she saw a couple walking on the road, she managed to escape and alerted the couple. She was taken to the police station and then to the hospital. Medical evidence confirmed the bodily injuries sustained by the complainant during the incident. The appellant gave evidence that he was drinking with his cousins on the night of the incident, and while walking to a shop he lost consciousness and had no memory of any incident with the complainant.

[3] The appellant appealed against his conviction to the High Court. He raised four grounds of appeal in the High Court. On 29 March 2012, the High Court dismissed the appeal and confirmed the appellant's conviction.

[4] On 10 May 2012, the appellant filed this appeal against the High Court's judgment. He has also applied for leave to adduce fresh evidence from the couple who rescued the complainant from the appellant. At trial, the couple was not called by the prosecution to give evidence. Nor did the defence make any application to the court to have the couple available for cross-examination. The appellant was represented by counsel of his choice. The appellant accepts that for tactical reasons his counsel decided not to call the couple to give evidence for the defence. In any event, the proposed evidence is not fresh in a sense that the defence was not aware of the evidence. The defence knew about the existence of the witnesses, but decided not to call them.

[5] This being a second tier appeal, the appellant's right of appeal is governed by section 22 of the Court of Appeal Act. Section 22 provides:

22(1) Any party to an appeal from a magistrate's court to the [High Court] may appeal, under this Part, against the decision of the [High Court] in such appellate jurisdiction to the Court of Appeal on any round of appeal which involves a question of law only ....:

[6] The grounds of appeal advanced by the appellant are:

Ground 1

That the Learned Trial Magistrate erred in Law and in facts when he only considered and accepted the evidence of the victim who was under the influence of liquor, as material evidence.

Ground 2

That the Learned Trial Magistrate erred in Law and facts when he accepted the credibility of the victim's statement and evidence in sober mind.

Ground 3

That the Learned Trial Magistrate had erred in law and in facts when he expected the sworn testimony and evidence of prosecution witness number 4 as material evidence.

[7] As can been seen, all the proposed grounds raise factual errors. Clearly, there is no question of law alone that arises from the grounds of appeal. The application to adduce fresh evidence does not raise a question of law alone. I feel satisfied that the appellant has no right of appeal under section 22 of the Court of Appeal Act.

[8] Section 35(2) of the Court of Appeal Act gives a single judge power to dismiss an appeal that is bound to fail because there is no right of appeal. This is a case for dismissal under section 35(2).

Result
[9] Appeal dismissed under section 35(2) of the Court of Appeal Act.

.................................
Hon. Justice D. Goundar
JUSTICE OF APPEAL

At Suva
19 September 2014

Solicitors:
Appellant in person
Office of the Director of Public Prosecutions for State