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Naisua v State [2015] FJCA 133; AAU014.2010 (2 October 2015)

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

CRIMINAL APPEAL NO. AAU 14 OF 2011
[High Court Criminal Case No. HAC 83 of 2010]

BETWEEN:

SIMELI BILI NAISUA
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini, P
Fernando, JA
Goundar, JA

Counsel : Mr. S. Sharma for the Appellant
Ms. J. Prasad for the Respondent

Date of Hearing : 16 September 2015
Date of Judgment : 2 October 2015

JUDGMENT

Calanchini P

[1] I have read in draft form the judgment of Fernando JA and agree that the appeal should be allowed and the conviction quashed.

Fernando JA

[2] The Appellant had appealed against his conviction by the High Court at Suva for the offence of rape contrary to Section 207 (1)(c) of the Crimes Decree of 2009 and the sentence of 15 years imprisonment with a non-parole term of 11 years imposed on him, after leave was granted to appeal against the conviction and sentence. The Appellant had been unrepresented at his trial before the High Court at Suva.

[3] The charge of rape was based on penile penetration of the mouth of a three and a half year old girl. The Appellant was her uncle. The conviction was based on the complainant's unsworn evidence, the evidence of her mother and sister to whom the complainant had narrated the incident and the Appellant's confession to the police.

[4] The Appellant had filed the following grounds of appeal against his conviction:

1. "The Learned Trial Judge erred in law and in fact when he failed to direct the assessors on the use of recent complaint evidence to assess the credibility of the complainant.
   
2. The Learned Trial Judge erred in law and in fact when he failed to direct and guide the assessors on how to approach the evidence contained in the caution interview and the weight to be attached to the disputed confession.
   

100. The Learned Trial Judge erred in law and in fact when he did not direct and/or guide the assessors on the cross examination of the victim by the Appellant resulting in a substantial miscarriage of justice. This ground was abandoned in the Submissions filed on behalf of the Appellant on the 22nd of July 2015 and further confirmed at the hearing by Counsel for the Appellant.
     

4. The Learned Trial Judge erred in law and in fact when he allowed the Prosecution to cross examine Defence witness one about his previous conviction which resulted in substantial miscarriage of justice and/or mistrial.
   
5. The Learned Trial Judge erred in law and in fact when he did not inform the Appellant about his option to give evidence during the voir dire."
   

[5] The Appellant had filed the following grounds of appeal against the Sentence:

"The Learned Trial Judge erred in the exercise of his discretion by failing to take into account the following relevant considerations:

1. Taking a higher starting point at 13 years imprisonment;
   
2. Adding the aggravating factors which were already part of the higher starting point;
   

100. Although the period in remand was taken as a mitigation factor there is no indication that it was applied in the reduction of the sentence."
     

[6] At the hearing before us Counsel for the Respondent conceded on ground (a) of appeal against conviction relying on the decision of Peniasi Senikarawa v State, Criminal Appeal No. AAU 005 of 2004S; that there should have been a direction on the use of recent complaint and that the Learned Trial Judge had failed to do so.

[7] The Counsel for the Respondent also conceded at the hearing before us on grounds (b) and (e) against conviction, placing reliance on the Australian case of Burns v The Queen (1975) 132 CLR 258. An examination of the Court record shows that the Learned Trial Judge had not cautioned the assessors that they could use the confession against the Appellant only if satisfied that the Appellant made the confession to Police Detective Isoa Natui who conducted the cautioned interview and that it was truthful. It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the assessors. It is therefore for the assessors to determine whether the alleged confession was made and whether it was true in whole or in part. Thus the need for the caution. Counsel for the Appellant drew our attention by way of a comparison to the fact that the Appellant had not been explained his right to give evidence at the Voir dire although at the close of the prosecution case the Learned Trial Judge had explained to the Appellant of his right to get in to the witness box and give sworn evidence and call evidence. This was a material error on the part of the Learned Trial Judge especially because the Appellant was unrepresented at his trial.

[8] I do not think that there is any merit in ground (d) of appeal against conviction as it was perfectly lawful for the Learned Prosecutor to challenge the credibility of the defence witness by cross-examining him as regards his previous conviction.

[9] It was the position of Counsel for the Respondent that in view of her conceding on grounds (a), (b) and (e), the conviction cannot be sustained and the appeal has to be allowed. I am in agreement with the Counsel for the State that in view of the non-directions of the Trial Judge on these fundamental matters the opinions of the assessors and the verdict are unreasonable. I would therefore allow the appeal and quash the conviction. As a result it is not necessary to consider the appeal against Sentence.

[10] I am however of the view that properly directed the assessors and the learned Trial Judge could have convicted the Appellant on the evidence that was available in this case and therefore in exercise of the powers under 23(2) (a) of the Court of Appeal Act (Cap 12), I would order a new trial against the Appellant in the interests of justice.

Goundar JA
[11] I agree the appeal should be allowed and a new trial be ordered for the reasons given by Fernando JA.

The Orders of the Court are:

1. Appeal allowed and conviction quashed.
2. A new trial is ordered in the interests of justice.
   

Hon. Justice W. Calanchini
PRESIDENT, FIJI COURT OF APPEAL

Hon. Justice A. Fernando
JUSTICE OF APPEAL

Hon. 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 Respondent.