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Raqili v State [2015] FJCA 89; AAU0024.2014 (17 June 2015)

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

CRIMINAL APPEAL NO. AAU 0024 OF 2014
[High Court Case No. HAC 102 of 2013]

BETWEEN:

TUVITA RAQILI
Appellant

AND:

THE STATE
Respondent

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

Date of Hearing : 10 June 2015
Date of Ruling : 17 June 2015

RULING

[1] The Appellant was convicted of rape after trial in the High Court at Suva and sentenced to 7 years' imprisonment with a non-parole period of 5 years. This is his application for leave to appeal against conviction and sentence on the following grounds:

i. The Learned Trial Judge erred in law and in fact when he expressed an opinion to the assessors on how they should treat the evidence of the Doctor at paragraph 25 of his summing up by stating that there was absence of physical signs of forced penetration as a result of the complainant being fast asleep at the start of the sexual encounter which did not warrant any need to apply physical force.

ii. The Learned Trial Judge erred in law when he misdirected the assessors at paragraph 28 of his summing up on the burden and standard of proof by stating that the assessor's decision on the case depended largely on who the assessors perceived as being the more credible witness.

iii. The Learned Trial Judge erred in law when he failed to separately discount the period of one year which the Appellant had spent in remand.

iv. The Learned Trial Judge erred in fact and law when he failed to justify the imposition of non-parole period. (This ground was withdrawn at the leave hearing).

[2] The first two grounds relate to conviction. A trial judge is entitled to express an opinion on the facts when summing up to the assessors, provided the opinion is expressed in a balanced and fair manner. Counsel for the Appellant submits that the Trial Judge's direction at paragraph 25 of the summing up was unfair. The impugned direction reads:

"One could argue, there was no need to apply physical force on the complainant at the start of the sexual encounter, because she was fast asleep, hence, the absence of any physical signs of forced penetration".

[3] The above direction was tailored in accordance with the evidence of the complainant. The complainant said she was asleep when the Appellant started to penetrate her. She did not say she sustained injuries during the incident. The medical evidence was of limited probative value to establish forceful sexual intercourse. In these circumstances, ground one is not arguable.

[4] The error alleged on ground two is taken out of context. The Trial Judge gave clear directions on the standard and burden of proof. At the end of the day, the resolution of the charges depended on the view that the trial court took on the credibility of the witnesses. There is no arguable error in that regard.

Remand Period
[5] In sentencing the Appellant the Trial Judge took into account that he had been in custody on remand for one year. He was given a reduction of 3 years for the mitigating factors which included the remand period. The only mitigating factor was the Appellant's previous good character. A total reduction of 3 years effectively meant that the Appellant was given 2 years reduction for his good character and 1 year reduction for his remand period. There is no arguable error in the sentencing discretion of the Trial Judge.

Result

Leave to appeal against conviction and sentence is refused.

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

Solicitors:
Legal Aid Commission for the Appellant
Director of the Public Prosecution for the Respondent