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Naqau v State [2014] FJCA 47; AAU12.2012 (11 April 2014)

IN THE COURT OF APPEAL
On appeal from the High Court

CRIMINAL APPEAL NO: AAU12 OF 2011
High Court Case No. HAC 127 of 2010

BETWEEN:

SAKIUSA NAQAU
Appellant

AND:

THE STATE
Respondent

Coram: Goundar JA

Counsel: Appellant in person
Mr. Y. Prasad for the Respondent

Date of Hearing: 20 March 2014
Date of Ruling: 11 April 2014

RULING

[1] There are two applications before me. The first is an application for leave to appeal against conviction. The second is an application for bail pending appeal.

[2] The appellant was tried and convicted of rape in the High Court at Suva. The victim was an adult female at the time of the incident. On the day of the alleged incident, she accompanied her cousin brother to Nausori town. While they were in town, they got invited by the appellant and his friend to join them for a drink outside the Nausori Club. The victim did not know the appellant before that date. After consuming some beer, the victim's cousin and the appellant's friend left to get a taxi. The victim remained with the appellant. The appellant made a remark to the victim to the effect that he loved her. When the victim responded by saying 'no', the appellant punched and dragged her to an isolated spot behind some bamboo trees. When the victim refused to have sex, the appellant further assaulted her and removed her clothes. He tried to penetrate her mouth with his penis but she kept her mouth closed. When she refused to cooperate, he punched her in her forehead. She fell down. The appellant pinned the victim down by sitting on her thighs and penetrated her vagina using his finger. While that was happening, the victim's cousin returned to the drinking spot and called the victim's name. When the appellant heard the cousin's voice, he swore at him and threatened to kill him. The cousin ran to the next door Club to raise alarm with the security guards. The victim pushed the appellant away and ran towards her cousin wearing only her underwear. The police was alerted. The police attended the victim within 5 minutes. They saw the victim in a distress condition with visible facial injuries. She pointed out to the appellant as the perpetrator. The police approached the appellant and asked him to accompany them to the station. While the appellant was being escorted to the station he fled and hid in the grass along the Rewa River. The police located him and brought him to the station under arrest.

[3] The grounds of appeal against conviction are:

"i. The learned trial Judge erred in law by failing to consider that racial composition of the assessors of which two of three were Fijian and one of Indian descent whilst the victim was a Fijian.

ii That the trial was prejudiced through lack of legal representation.

iii. That the learned trial Judge erred in law in misdirecting the assessors that the opinion of the medical officer is admissible in evidence whilst the proper approach is to give the assessors to decide for themselves the facts of the case.

iv. That the learned trial Judge erred in law and in facts when his Lordship's direction failed to effectively canvass the defence case thereby encumbering the right to a fair trial.

v. That the learned trial Judge erred in law when his Lordship failed to leave to his assessors to make their own deliberate opinion in deciding the credibility and veracity of every evidence during the analyzing of evidence in the summing up.

vi. That the absence of identification parade in accepting dock identification tenders the findings of the learned trial Judge in respect to positive identification an error of law.

vii. That the learned trial judge's direction to the assessors in respect to the identity of the appellant on paragraph 34 of the summing up is not according to the established principle as it is wrong in law and a gross misdirection.

viii. That the learned trial Judge erred in law by failing to direct assessors that the complainant's allegation of rape is inconsistent with the report of the medical officer.

ix. That the conviction is unsafe and unsatisfactory and can't stand having regard to evidence."

[4] This appeal falls within the ambit of section 21(1) of the Court of Appeal Act. Leave is required to appeal on any ground which involves a question of mixed law and fact, or fact alone. The test for leave is whether the ground is arguable before the Full Court (Naisua v State Criminal Appeal No: CAV0010 of 2013). A single judge has power to grant leave pursuant to section 35(1) of the Court of Appeal Act.

[5] Leave is not required on any ground which involves a question of law alone. However, the question of law must not be frivolous. A single judge has power to dismiss an appeal that cannot possibly succeed and is frivolous (Naisua's case).

Composition of the assessors
[6] The trial commenced on 13 February 2012. The appellant elected to represent himself. Before the assessors were sworn in, the trial judge complied with section 224(2) of the Criminal Procedure Decree and ascertained from the State counsel and the appellant whether they had any objection to the assessors. According to the judge's notes, the appellant had no objection and the assessors were sworn in. The panel comprised of two females from I-taukei background and one male from Indian background. The appellant argues that the inclusion of the two I-taukei women in the panel of assessors gave rise to an apprehension of bias because the female victim was also an I-taukei woman. This contention is not arguable for two reasons. Firstly, an assessor is not disqualified on the basis of race and gender. Race or gender alone cannot give rise to a perception of bias. Secondly, the assessors express their opinions based on the law and evidence as directed by the trial judge. There is a presumption that the assessors perform their functions independently, impartially, fairly and without favour or bias one way or the other. The presumption can be displaced only on very compelling grounds. None exists in this case.

Lack of legal representation
[7] The mere fact that the appellant was unrepresented is not sufficient to give rise to a miscarriage of justice. The appellant was charged on 28 June 2010 and presented in the Magistrates' Court on the same day. When the learned Magistrate advised him of his right to counsel, the appellant waived his right. When the appellant appeared in the High Court, the learned judge again advised him of his right to counsel. The appellant applied for legal aid, but his application was rejected. On 16 February 2011, the appellant informed the Court that he was going to represent himself. When an accused is unsuccessful in securing counsel, the judge should proceed with the trial and ensure the trial is fair (Ledua v State Criminal Appeal No. CAV0004 of 2007). According to the judge's notes, the appellant was given an opportunity to cross-examine the prosecution witnesses and present his defence. The trial judge fairly summarised the appellant's defence to the assessors. There is nothing to suggest that the trial miscarried because the appellant was unrepresented.

Medical report
[8] The medical report of the victim revealed that she sustained visible facial injuries that were consistent with physical abuse. The history related to the doctor was that a Fijian man assaulted her and inserted his finger in her vagina. The history related to the doctor was consistent with the evidence of the victim in court. The medical evidence was opinion evidence and the trial judge correctly pointed out in his summing up that the doctor's opinion on the matters in the field of obstetrician and gynecology was admissible evidence. At paragraph 29 of his summing up, the trial judge summarized the medical evidence to the assessors and left the weight of it to be considered by them. There is no arguable error in those directions.

Failure to put the appellant's defence
[9] The appellant's defence was that he had no recollection of the events of 25 June 2010 (date of rape) because he was too drunk. The trial judge correctly directed the assessors at paragraph 38 of the summing up that voluntary intoxication was no defence for rape, and at paragraph 40 the assessors were directed to consider whether the prosecution had proved the charge against the appellant beyond reasonable doubt.

Defective summing up
[10] I have read the whole summing up. The trial judge did not express any opinions on the facts. The credibility and veracity of the evidence was left for the assessors to decide.

Identification evidence
[11] The identification of the appellant by the victim did not arise as result of a fleeting glimpse. Before the victim was attacked by the appellant, she had been in his company for two hours. Shortly after the sexual assault, she identified the appellant on the spot. A police identification parade was unnecessary in these circumstances and the dock identification was not prejudicial because the evidence did not give rise to the possibility of mistaken identification. In any event, the trial judge gave partial Turnbull directions on the identification evidence at paragraphs 34 and 35 of the summing up.

Unsafe verdict
[12] The appellant submits that his conviction is not supported by evidence. The evidence of the victim and the confirmatory evidence from her cousin brother, the police officers and the medical evidence were sufficient to establish guilt beyond reasonable doubt.

Result
[13] The grounds of appeal are not arguable and they cannot possibly succeed. The appeal is frivolous. The application for bail must fail as well.

[14] Leave is refused on all the grounds and the appeal is dismissed under section 35(2) of the Court of Appeal Act.

Hon. Justice D. Goundar
JUSTICE OF APPEAL