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Koroi v State [2015] FJCA 115; AAU0050.2014 (19 June 2015)

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

CRIMINAL APPEAL NO. AAU 0050 OF 2014
[High Court Case No. HAC 399 of 2012]

BETWEEN:

WASEROMA KOROI
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. J. Savou for the Appellant
Mr. Y. Prasad for the State

Date of Hearing : 12 June 2015
Date of Ruling : 19 June 2015

RULING

[1] The Appellant seeks leave to appeal against conviction and sentence. The appeal is late by one month. The State has no objection to an extension of time and concedes the grounds of appeal are arguable.

[2] The grounds of appeal are:

Ground 1 – The Learned Trial Judge erred in law and fact by failing to acquit the Appellant on all charges even though the Learned Trial Judge opined at paragraph 3 of his Judgment that the complainant was mentally and emotionally handicapped and that he perceived that she was coached to a certain degree.

Ground 2 – Learned Trial Judge erred in law and fact when he convicted the Appellant for the offence of incest when the evidence of the complainant had been suggestive for the offence of rape and not incest.

Ground 3 – Learned Trial Judge erred in law and fact when he failed to direct the assessors on the law concerning circumstantial evidence and how the assessors should treat the same which was evident from the narrative of the evidence of Koini.

Appeal Against Sentence

The learned Trial Judge erred in fact when he stated at paragraph 9 of the sentence that the complainant was mentally and emotionally handicapped when there were no medical findings to suggest the same.

The Learned Trial Judge erred in law when he failed to justify the imposition of a non-parole period.

[3] The appellant was charged with two counts of rape and one count of incest. The complainant was the Appellant's biological daughter. She was mentally handicapped. The extent of her mental disability is not clear at this stage.

[4] She gave evidence at trial. Her evidence was that the Appellant had sexual intercourse with her using force on all occasions. The assessors expressed unanimous opinion that the Appellant was not guilty of rape on counts 1 and 2 but guilty of incest on count 3. The Trial Judge agreed.

[5] In his judgment the Trial Judge stated that he perceived the complainant was 'coached' but he was satisfied that sexual intercourse had taken place between the complainant and the Appellant. The details of coaching are not clear at this stage.

[6] Counsel for the Appellant submits that if the Trial Judge perceived the complainant was coached, then arguably her evidence was unreliable and that the Trial Judge could not have relied upon her evidence to convict the Appellant for incest.

[7] In my judgment, grounds one and two are arguable.

[8] Ground three relates to lack of directions on circumstantial evidence. There was evidence from the complainant's aunt who had witnessed the complainant naked while the Appellant was inside the same room in his house. However, the witness did not see any sexual activity. The evidence alone was not sufficient to convict the Appellant for incest. No direction on circumstantial evidence was required on this evidence. Ground three is not arguable.

Sentence Appeal
[9] Ground two was withdrawn at the leave hearing.

[10] Ground one relates to the mental disability of the complainant. The Trial Judge used this as an aggravating factor. Counsel for the Appellant submits that there was no evidence of the extent of the complainant's mental disability to justify an increase in sentence. This ground is arguable.

Result
Leave to appeal against conviction and sentence granted.

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

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