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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 0057 of 2018
[In the High Court at Lautoka Case No. HAC 220 of 2013]
BETWEEN:
VILIAME WAQANINAVATU
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, JA
Counsel: Appellant in Person
Mr. A. Jack for the Respondent
Date of Hearing: 17 July 2020
Date of Ruling : 27 July 2020
RULING
[1] The appellant had been indicted in the High Court of Suva on one count of rape and one count of attempt to pervert the course of justice on or about 27 October 2012 contrary to section 207(1) and (2) (a) and 190(A) of the Crimes Decree, 2009 respectively.
[2] At the conclusion of the trial on 21 February 2018, the assessors’ opinion was unanimous that the appellant was guilty of both counts as charged. The learned trial judge had agreed with the assessors in his judgment delivered on the same day, convicted the appellant and sentenced him to 08 years with a minimum serving period of 07 years on the charge of rape and 18 months of imprisonment on the charge of attempt to pervert the course of justice; both to run concurrently.
[3] The appellant’s untimely application for leave to appeal out of time filed in person against conviction had been signed on 08 June 2018 (received by the CA registry on 11 June 2017 followed by an affidavit dated 26 July 2019. Though, the appellant had stated in the application for leave to appeal out of time that he had already filed his appeal against sentence, I do not find any such document among the appeal papers. Thus, his appeal against conviction is out of time by 2 ½ months. The appellant had signed an affidavit for bail pending appeal on 24 May 2019 and his amended grounds of appeal had been received by the CA registry on 05 June 2019 and 20 June 2019. His written submissions on his appeal against conviction and bail pending appeal had been dated 06 December 2019. The state had filed its written submissions on 12 March 2020. The appellant had filed ‘cross submissions’ on 24 April 2020. The appellant had once again filed another two sets of written submissions on 18 May 2020 and 26 June 2020 (the same as the one signed on 14 July 2020 and reached the CA registry on 21 July 2020). The state’s additional submissions have been filed on 29 June 2020.
[4] Presently, guidance for the determination of an application for extension of time within which an application for leave to appeal may be filed, is given in the decisions in Rasaku v State CAV0009, 0013 of 2009: 24 April 2013 [2013] FJSC 4, Kumar v State; Sinu v State CAV0001 of 2009: 21 August 2012 [2012] FJSC 17.
[5] In Kumar the Supreme Court held
‘[4] Appellate courts examine five factors by way of a principled approach to such applications. Those factors are:
(i) The reason for the failure to file within time.
(ii) The length of the delay.
(iii) Whether there is a ground of merit justifying the appellate court's consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?
[6] Rasaku the Supreme Court further held
‘These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application for enlargement of time. Ultimately, it is for the court to uphold its own rules, while always endeavouring to avoid or redress any grave injustice that might result from the strict application of the rules of court.’
[7] Under the third and fourth factors in Kumar, test for enlargement of time now is ‘real prospect of success’. I would rather consider the third and fourth factors in Kumar first before looking at the other factors which will be considered, if necessary, in the end. In Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019) the Court of Appeal said
‘[23] In my view, therefore, the threshold for enlargement of time should logically be higher than that of leave to appeal and in order to obtain enlargement or extension of time the appellant must satisfy this court that his appeal not only has ‘merits’ and would probably succeed but also has a ‘real prospect of success’ (see R v Miller [2002] QCA 56 (1 March 2002) on any of the grounds of appeal......’
Law relating to bail pending appeal
[8] In Tiritiri v State [2015] FJCA 95; AAU09.2011 (17 July 2015) the Court of Appeal reiterated the applicable legal provisions and principles in bail pending appeal applications as earlier set out in Balaggan v The State AAU 48 of 2012 (3 December 2012) [2012] FJCA 100 and repeated in Zhong v The State AAU 44 of 2013 (15 July 2014) as follows.
‘[5] There is also before the Court an application for bail pending appeal pursuant to section 33(2) of the Act. The power of the Court of Appeal to grant bail pending appeal may be exercised by a justice of appeal pursuant to section 35(1) of the Act.
[6] In Zhong –v- The State (AAU 44 of 2013; 15 July 2014) I made some observations in relation to the granting of bail pending appeal. It is appropriate to repeat those observations in this ruling:
"[25] Whether bail pending appeal should be granted is a matter for the exercise of the Court's discretion. The words used in section 33 (2) are clear. The Court may, if it sees fit, admit an appellant to bail pending appeal. The discretion is to be exercised in accordance with established guidelines. Those guidelines are to be found in the earlier decisions of this court and other cases determining such applications. In addition, the discretion is subject to the provisions of the Bail Act 2002. The discretion must be exercised in a manner that is not inconsistent with the Bail Act.
[26] The starting point in considering an application for bail pending appeal is to recall the distinction between a person who has not been convicted and enjoys the presumption of innocence and a person who has been convicted and sentenced to a term of imprisonment. In the former case, under section 3(3) of the Bail Act there is a rebuttable presumption in favour of granting bail. In the latter case, under section 3(4) of the Bail Act, the presumption in favour of granting bail is displaced.
[27] Once it has been accepted that under the Bail Act there is no presumption in favour of bail for a convicted person appealing against conviction and/or sentence, it is necessary to consider the factors that are relevant to the exercise of the discretion. In the first instance these are set out in section 17 (3) of the Bail Act which states:
"When a court is considering the granting of bail to a person who has appealed against conviction or sentence the court must take into account:
(a) the likelihood of success in the appeal;
(b) the likely time before the appeal hearing;
(c) the proportion of the original sentence which will have been served by the appellant when the appeal is heard."
[28] Although section 17 (3) imposes an obligation on the Court to take into account the three matters listed, the section does not preclude a court from taking into account any other matter which it considers to be relevant to the application. It has been well established by cases decided in Fiji that bail pending appeal should only be granted where there are exceptional circumstances. In Apisai Vuniyayawa Tora and Others –v- R (1978) 24 FLR 28, the Court of Appeal emphasised the overriding importance of the exceptional circumstances requirement:
"It has been a rule of practice for many years that where an accused person has been tried and convicted of an offence and sentenced
to a term of imprisonment, only in exceptional circumstances will he be released on bail during the pending of an appeal."
[29] The requirement that an applicant establish exceptional circumstances is significant in two ways. First, exceptional circumstances may be viewed as a matter to be considered in addition to the three factors listed in section 17 (3) of the Bail Act. Thus, even if an applicant does not bring his application within section 17 (3), there may be exceptional circumstances which may be sufficient to justify a grant of bail pending appeal. Secondly, exceptional circumstances should be viewed as a factor for the court to consider when determining the chances of success.
[30] This second aspect of exceptional circumstances was discussed by Ward P in Ratu Jope Seniloli and Others –v- The State (unreported criminal appeal No. 41 of 2004 delivered on 23 August 2004) at page 4:
"The likelihood of success has always been a factor the court has considered in applications for bail pending appeal and section 17 (3) now enacts that requirement. However it gives no indication that there has been any change in the manner in which the court determines the question and the courts in Fiji have long required a very high likelihood of success. It is not sufficient that the appeal raises arguable points and it is not for the single judge on an application for bail pending appeal to delve into the actual merits of the appeal. That as was pointed out in Koya's case (Koya v The State unreported AAU 11 of 1996 by Tikaram P) is the function of the Full Court after hearing full argument and with the advantage of having the trial record before it."
[31] It follows that the long standing requirement that bail pending appeal will only be granted in exceptional circumstances is the reason why "the chances of the appeal succeeding" factor in section 17 (3) has been interpreted by this Court to mean a very high likelihood of success."
[9] In Ratu Jope Seniloli & Ors. v The State AAU 41 of 2004 ( 23 August 2004) the Court of Appeal said that the likelihood of
success must be addressed first, and the two remaining matters in S.17(3) of the Bail Act namely "the likely time before the appeal hearing" and "the proportion of the original sentence which will have been served by the
applicant when the appeal is heard" are directly relevant ' only if the Court accepts there is a real likelihood of success' otherwise,
those latter matters 'are otiose' (See also Ranigal v State [2019] FJCA 81; AAU0093.2018 (31 May 2019).
[10] In Kumar v State [2013] FJCA 59; AAU16.2013 (17 June 2013) the Court of Appeal said ‘This Court has applied section 17 (3) on the basis that the three matters
listed in the section are mandatory but not the only matters that the Court may take into account.’
[11] In Qurai v State [2012] FJCA 61; AAU36.2007 (1 October 2012) the Court of Appeal stated
‘It would appear that exceptional circumstances is a matter that is considered after the matters listed in section 17 (3) have been considered. On the one hand exceptional circumstances may be relied upon even when the applicant falls short of establishing a reason to grant bail under section 17 (3).
On the other hand exceptional circumstances is also relevant when considering each of the matters listed in section 17 (3).’
[12] In Balaggan the Court of Appeal further said that ‘The burden of satisfying the Court that the appeal has a very high likelihood
of success rests with the Appellant’
[13] In Qurai it was stated that:
"... The fact that the material raised arguable points that warranted the Court of Appeal hearing full argument with the benefit of the trial record does not by itself lead to the conclusion that there is a very high likelihood that the appeal will succeed...."
[14] Justice Byrne in Simon John Macartney v. The State Cr. App. No. AAU0103 of 2008 in his Ruling regarding an application for bail pending appeal said with reference to arguments based on inadequacy of the summing up of the trial [Also see Talala v State [2017] FJCA 88; ABU155.2016 (4 July 2017)].
"[30]........All these matters referred to by the Appellant and his criticism of the trial Judge for allegedly not giving adequate directions to the assessors are not matters which I as a single Judge hearing an application for bail pending appeal should attempt even to comment on. They are matters for the Full Court ... ....”
[15] Qurai quoted Seniloli and Others v The State AAU 41 of 2004 (23 August 2004) where Ward P had said
‘"The general restriction on granting bail pending appeal as established by cases by Fiji _ _ _ is that it may only be granted where there are exceptional circumstances. That is still the position and I do not accept that, in considering whether such circumstances exist, the Court cannot consider the applicant's character, personal circumstances and any other matters relevant to the determination. I also note that, in many of the cases where exceptional circumstances have been found to exist, they arose solely or principally from the applicant's personal circumstances such as extreme age and frailty or serious medical condition."
[16] Therefore, the legal position appears to be that the appellant has the burden of satisfying the appellate court firstly of the existence of matters set out under section 17(3) of the Bail Act and thereafter, in addition the existence of exceptional circumstances. A very high likelihood of success of the appeal would be deemed to satisfy the requirement of exceptional circumstances. However, an appellant can even rely only on ‘exceptional circumstances’ including extremely adverse personal circumstances when he cannot satisfy court of the presence of matters under section 17(3) of the Bail Act.
[17] Out of the three factors listed under section 17(3) of the Bail Act ‘likelihood of success’ would be considered first and if the appeal has a ‘very high likelihood of success’ then the other two matters in section 17(3) need to be considered, for otherwise they have no practical purpose or result.
[18] Therefore, when this court considers leave to appeal or leave to appeal out of time (i.e. enlargement of time) and bail pending appeal together it is only logical to consider leave to appeal or enlargement of time first, for if the appellant cannot reach the threshold for either of them he cannot then obviously reach the much higher standard of ‘very high likelihood of success’ for bail pending appeal. If an appellant fails in that respect the court need not go onto consider the other two factors under section 17(3). However, the court would still see whether the appellant has shown other exceptional circumstances to warrant bail pending appeal independent of the requirement of ‘very high likelihood of success’.
[19] The appellant stated at the hearing for enlargement of time that he would only rely on his grounds of appeal and written submissions filed on 26 June 2020 and abandon all previous grounds and submissions. Thus, grounds of appeal urged on behalf of the appellant are as follows.
That the learned trial judge has erred in law where he failed to give the right to appeal to the appellant.
Ground 2
Delay in bringing the case to court for trial and not determining the charge within a reasonable time is in breach of section 15(3) and section 14 (2) (g) of the Constitution of the Republic of Fiji Island 2013 and has causes miscarriage of justice and prejudice the accused.
Ground 3
That the learned trial judge had erred in law and in fact when he failed to canvass the defense case in an objectionable, fairly and balanced manner which prejudice the appellant.
Ground 4
That the learned trial judge had erred in law that he misdirected the assessors in regard to the second count.
Ground 5
That the Learned Trial Judge had failed to give any direction and/or direct assessors the principle of corroboration on count no.2.
Ground 6
That the Learned Trial Judge failed to direct the assessors and himself the rule of identification of the appellant.
Ground 7
That the Learned Trial Judge had erred in law in fact to convict the appellant on recent complaint and on the basis of her evidence alone without thorough analysis of it effect to the consistency of its conduct that she really was raped and forced to withdraw her complaint thus conviction is dangerous, unsafe and unsatisfactory.
Ground 8
That the Learned Trial Judge has failed to give sufficient direction regarding the statement made to Police and one given in Court.
Ground 9
That the Learned Trial Judge erred in law and in fact when he allowed improper withdrawal of issues of fact.
Ground 10
That the Learned Trial Judge erred in law and in fact when he directed the assessors of the appellant identity as stated by the victim that he was wearing ¼ pants without top while the second prosecution witness in his statement to police he stated that the appellant was wearing long pants.
Ground 11
That the Learned Trial Judge erred in law and in fact misdirecting the assessors to prove beyond any reasonable doubt the second element of the charge of Rape that penetration took place with penis and the vagina is that no medical evidence produce, when it is available.
Ground 12
The Learned Trial Judge erred in law when his Lordship convicted the appellant on a charge information that is uncertainty and defective in its form for the second count.
Ground 13
That the Learned Trial Judge erred in law and in fact in limiting his direction when drawing the assessor’s attention on the inconsistencies on facts between the account given by the complainant and the witness complained to thus conviction is unsafe and unsatisfactory.
Ground 14
That the Learned Trial Judge had erred in law and in fact in admitting evidence which is believed to be hearsay evidence.
Ground 15
That the Learned Trial Judge had erred when he failed to specifically outline or specify in the summing up section of the Crimes Decree 2009 for assessors reference or in the judgment to specifically specify the sections of Crime Decree 2009 his Lordship has determine to convict the appellant nor specifically specify in the sentencing order which section of the Crimes Decree 2009 the appellant is sentenced with. There is no reference made in the summing up thus contravene section 142 (3) of Criminal Procedure Decree 2009 for justice purpose.
Ground 16
That the Learned Trial Judge had erred in law and in fact when his Lordship allowed amendment of information, thus become uncertain in its form becomes misleading and deceiving prejudice the appellant citing the length of investigation and the circumstances of the case.
Ground 17
The para 26 and para 27 of the summing up constitute misdirection as his Lordship has stated in para 25 that is all he wish to say, thus those direction are just repetitions of unsupported evidence and more over insisting his opined to the assessors to find the appellant guilty of the crime which he failed to specify this is miscarriage of justice and prejudicial.
Ground 18
That the Learned Trial Judge’s summing up were not balance and unfair due to unethical phrase used and discriminatory remarks which should not be included in the summing up. This is prejudicial.
Ground 19
That the trial was conducted in an unfair and injustice trial concept where his Lordship had failed to allow the accused to be present during summing up deliberation and the questioning of judge to the complainant who was reluctant and not sure as to the nature of penetration, thus unsafe and unsatisfactory.
Ground 20
That the Learned Trial Judge erred in law and in fact when he convicted the appellant on inconsistencies within the evidence or contradiction/omissions inter-se disregarding contradiction/ omissions per-se. Thus convictions are dangerous, unsafe and unsatisfactory.
Ground 21
That the Learned Trial Judge had erred in law and in fact when his Lordship failed to make any reference in the summing up and in the judgment evidence of not in distress condition when the complainant was first met with the witness complained to i.e. Pita and Constable Ledua to the effect that she was really raped. Thus conviction is unsafe.
Ground 22
That the Learned Trial Judge erred in law and in fact when his Lordship convicted the appellant on second count using recent complain principle without any reference or evidence in support to give evidence as to the term of such complaint thus her consistency and conduct of her being forced to withdraw her complaint is incredible and unreliable. Conviction is unsafe and unsatisfactory.
Ground 23
That the appellant defence counsel were incompetent and failure to follow instruction in crucial area that would definitely change the outcome of the case and also there advice that there were inconsistencies and contradiction.
[20] The learned trial judge has summarized the facts as follows.
‘14.] The thrust of the prosecution evidence came from Lili the lady who reported this crime of rape. She told us that in the early hours of the 27th October she was drinking grog at her sister’s house with her two roommates. When she was there a friend called Sai called her and asked her to go to NASA Club. She and the two friends went to NASA and joined Sai for about 2.5 hours. After that the 4 of them went to “After Dark” night club.
15.] When that club closed she was outside with Vili and he asked her to go with him to his dorm to get some money. She had never met Vili before but had met him in the “After Dark”. She said that Sai knows Vili and he had called him over to meet them. They spent an hour together in the club. She went with Vili in a taxi to his dorm. He asked her to go inside the room and asked her to hug him. She said no, just get the money and we will go. He kept hugging her and trying to have sex with her. He lay on top of her wearing ¾ shorts and no top. He overcame her and pulled her panties and he had sexual intercourse with her. She didn’t like what he did. She was crying and didn’t want him to put his penis in her vagina. When he had finished he left her and went to his home which was not in the dorm. When she came out of the room she saw a policeman and she ran to him. His name was Pita and she told him what had happened. He took her to the Police Station because he didn’t want to talk in a public place and he wanted to find out what had happened. She was taken to another officer and told him that it was Vili who had done it. It was at the station that she learned that Vili was a Police Officer and that he lived in quarters and not the dorm. She made a statement to the Police and then went to the hospital.
16.] After that Vili asked Patrick, another Police Officer, to call her and get her to go to Vili’s house and talk about the incident. Patrick came with Vili’s wife and their small child to her dorm to ask her to withdraw the case. Patrick came twice and on a third occasion he picked her up from the grog shop and took her to Vili’s place to talk. Her roommate Unaisi went with her. They got to his house in the early evening between 7pm and 8pm, they sat on a mat outside. There were Vili, his wife, Patrick, the witness Lili, and Unaisi. They told her to withdraw the complaint and they would give her money. Vili’s wife said that when he got his job back they would pay her. Vili was talking to Patrick and he talked to her but she didn’t speak to him. She told the group that she didn’t want to withdraw the case.
17.] Two days after that Patrick went to her sister’s house to try to get her to persuade Lili to withdraw. The sister called and asked Lili to go and meet her to discuss it. Lili went and her sister told her that Patrick had been to see her three times. She told her sister she wasn’t going to withdraw.
18.] Lili identified the accused in Court as the Vili she had been talking about all through her evidence.
19.] In cross-examination Lili agreed that she never mentioned the name Vili in her statement to the Police, but she said that she didn’t know his name at the time she made the Statement. She also admitted that she told the Police he was wearing a condom, something that she did not say in her evidence.
20.] She admitted that there was no formal identification parade at the station, but she saw him there and identified him as her rapist.
21.] The second prosecution witness was a senior officer Petero. At 5am on the 27th October 2012 he was stationed outside the “After Dark” nightclub. He saw the accused (he identified him in Court) following a tall slim iTaukei girl out of the club. He happened to see her in the Namaka Police station later that day. He paid special attention to the accused because he knew him as a police officer.
22.] The third and last witness for the prosecution was Pita Keni, another senior police officer in the Nadi District. On the 27th October 2012 he was going for his morning walk and on the way he conducted his usual check on the Namaka compound and quarters. On his way home, he met Lili who was with another officer, PC Ledua . She told Pita that she had been raped at the Bachelors quarters. Ten minutes later she came to Pita’s residence, frustrated. She told Pita that she had been raped and told him where the room was. Pita went to the room and said that there was nobody there. He did not say it was empty as Mr. Maopa told you yesterday. Pita took Lili to Namaka Police Station to lodge a complaint and he handed her over to Corporal Joshua to take a statement.
01st ground of appeal
[21] Every person charged with an offence has the right to appeal or review by a higher court (vide section 14 (2) (o) of the Constitution of the Republic of Fiji). Appeals lie to the Court of Appeal as of right from final judgments of the High Court (vide section 3(3) of the Court of Appeal Act) and section 21 of the CA Act inter alia provides for such appeals against convictions, sentences, acquittals and grant or refusal of bail pending trial. Time for appealing is set out in section 26(1) of the CA Act. The Court of Appeal Rules regulates the procedure to be adopted.
[22] None of these depends on the trial judge and therefore, no judge needs to give the right of appeal statutorily enshrined and protected to an appellant.
[23] There is no prospect of success in the ground of appeal.
02nd ground of appeal
[24] The appellant complains of the delay in bringing his case to court for trial which according to him was 05 years and 06 months but he had not articulated clearly how the delay resulted in a miscarriage of justice. He relies on section 14 (2)(g) of the Constitution of the Republic of Fiji which states that every person charged with an offence has the right to have the trial begin and conclude without unreasonable delay and section 15 (3) of the Constitution of the Republic of Fiji . He also relies on the decisions in Ram v State [2012] FJSC 12; CAV0001.2011 (9 May 2012) where, however, no determination had been made on the issue of delay as it had not been raised as a ground of appeal.
‘75. Significant delay in bringing the case to court for trial could also result in a substantial miscarriage of justice. I note that, although delay has not been urged as a ground of appeal in this case, there had been considerable delay in charging the Petitioner in this case, and the case was taken up for trial only in 2008, long after the alleged offence which was committed on 22nd July 2000. It is noteworthy that a delay of 4 years and 10 months was considered sufficient to prejudice the accused in Seru v. The State [2003] FJCA 26, and in Nalawa v The State [2010] FJSC 2, CAV 0002.2009, although a different conclusion was reached on the facts, this Court did emphasise the right of every accused to a fair trial without unreasonable delay, which is guaranteed by Article 8 of the Universal Declaration of Human Rights to which Fiji is a party, and Article 9(3) of the International Covenant on Civil and Political Rights, the provisions of which have since been incorporated into the Crimes Decree of 2009.
[25] The appellant also relies on Seru v State [2003] FJCA 26; AAU0041.99S & AAU0042.99S (30 May 2003) where prior to trial the appellants had applied to the High Court that the information
be stayed, on the ground that their rights under section 29(3) of the Constitution (Amendment) Act 1997 (the Constitution) had been
infringed. This constitutional provision had stated that every person charged with an offence has the right to have the case determined
within a reasonable time. The High Court judge had decided the applications for stay should be dismissed. The appellants appealed
to the Court of Appeal but their appeals, though referred to the full court, were not heard before a full court. The trial in the
High Court proceeded resulting in convictions and on their conviction appeal both appellants had argued that the delays were such
as to breach section 29(3), and that the appeals ought to succeed on that ground if no other.
[26] The Court went onto state
‘Subject to the issue just discussed, the State did not deny the Court had jurisdiction to consider the argument based on s29(3).
In the absence of argument we do not express a final opinion on the foundation of the jurisdiction, but the possibilities include
regarding it as founded on the miscarriage of justice ground under s23(1)(a) of the Court of Appeal Act Cap 12; or the rationale may be that s29(3) expands the statutory grounds of appeal. A leading decision in the Supreme Court of Canada,
R v Morin (1992) CR (4th) 1 dealt with a delay argument after trial and conviction; although the appellant’s contention failed,
none of the judgments suggested the argument could not be raised at that stage. Likewise, in R v Coghill [1995] 3 NZLR 651, a full court of the New Zealand Court of Appeal dealt with a delay argument under the corresponding New Zealand legislation, on
an appeal after trial. We consider it is open to an appellant to raise the delay issue post trial, certainly in cases where, as here,
the point has been taken pre-trial, and an appeal against dismissal was lodged and remained extant. To what extent this Court has
jurisdiction to entertain such a ground post trial in different circumstances must remain to be decided in cases where that issue
arises.’
[27] Finally, having exhaustively analyzed and applied the test formulated in R v Morin (supra) to the facts, the Court decided as follows
‘Looking at the sum of the relevant factors discussed above, we are driven to the conclusion that in the circumstances of this case, the delay which occurred between charge and trial was unreasonable. The appeals must succeed on this ground alone. A particular feature of the delay is the time taken over the committal process, but we rely also on the total period involved between the date of charging and the conclusion of the trial.’
[28] In Nalawa v State [2010] FJSC 2; CAV0002.2009 (13 August 2010) where the issue of delay had been taken in appeal for the first time in the Court of Appeal and then in the Supreme Court, the Supreme Court (without objection to jurisdiction by the State) had focused on the issue of a fair trial without unreasonable delay and after making the following remarks, yet dismissed the appeal as it was found that the petitioner had been the cause of his own problems as far as delay was concerned. Therefore, by implication the Supreme Court had admitted the ground based on delay even when it had not been raised in the Magistrates court and in the High Court and the appellant had not sought any other remedy to redress delay.
‘[25] From the Case Law this Court at the risk of re-affirming well established principles and for the guidance of the courts and the public states the following factors as relevant to any case in which the question of delay affecting a fair trial is an issue:
(i) the length of the delay;
(ii) the reason for the delay;
(iii) whether or not a defendant has asserted his or her right to a speedy trial and
(iv) the extent of any prejudice.
[26] At all times the Court must take into account local circumstances such as Fiji's limited resources, and particularly those available to the administration of Justice.
[27] At paragraph 25 of its judgment the Court of Appeal said that, "There are many previous decisions of this Court which have reviewed the relevant principles concerning delay and the proper application to the facts of the individual case of the terms in Section 29 (3) of the former Constitution". The Court then said: "The collected jurisprudence shows us that there are many different factors to consider when determining if an appellant's case was determined within a reasonable time.
These factors include:
(a) The length of the delay;
(b) The reasons for the delay (including on the part of the accused, the judiciary, the prosecution or legal aid);
(c) The inherent time requirements of the case;
(d) The limitations on institutional resources (including the judiciary, the prosecution and legal aid);
(e) Any waiver by an accused of his rights;
(f) Acquiescence to delay by an accused;
(g) The effect of delay on the fairness of a trial;
(h) Any prejudice to the accused cause by the delay.
[28] The Court then said that the above list was not intended to be exhaustive because each case must be examined in the context of its own particular facts before unreasonableness can be determined. It said: "One must balance all the particular circumstances of a case and then determine firstly whether the length of the delay is unreasonable, and secondly, even if the delay was unreasonable determine whether it affected the fairness of the trial."
[29] We agree with these remarks.
[29] The appellant does not appear to have taken up the issue of delay at the trial itself or by way of separate action for stay of proceedings or an application for constitutional redress on account of delay. However, it may not prevent him from taking it up as a ground of appeal (vide Nalawa). Therefore, I assume that this court has jurisdiction to entertain this ground of appeal based on delay taken up for the first time in appeal, (though no arguments were heard in that regard from both parties), but whether the appellant could succeed on that ground of appeal alone would depend essentially on the facts of the case to be determined according to the principles enunciated in Nalawa. Thus, this appears to be a mixed question of law and fact which requires the complete appeal record for the full court to decide. I cannot see what prospect of success the appellant would have in respect of his complaint at this stage. Therefore, only the full court could consider this ground of appeal with the benefit of the complete appeal record if the appellant decides to renew his appeal.
03rd, 9th, 11th, 14th, 16thand 19th grounds of appeal
[30] The appellant had made submissions on the above grounds together.
[31] The appellant had not given evidence or called witnesses. His position in cross-examination had been a total denial and that the allegation was a false accusation. It is not clear whether he had suggested a motive for the complainant to have falsely implicated him in rape and his subsequent conduct.
[32] I find that in paragraphs 19, 20 and 24 of the summing-up the learned trial judge had directed the assessors on matters of cross-examination and warned them not to draw any adverse inferences from the appellant’s failure to give evidence or call evidence.
[33] The appellant had particularly highlighted the trial judge’s directions in paragraph 4 and 22 where he had asked the assessors to ignore certain comments made by the defense counsel on lack of medical evidence and whether the room where the alleged rape had taken place was empty or simply vacant. None of these complaints and their impact on the ultimate verdict can be examined without the appeal record.
[34] The appellant has also pointed out the failure of the prosecution to call PC Ledua whom the complainant had met first after the act of rape, non-availability of medical evidence and not calling a person called Patrick in respect of the second count in order to assess the credibility of the complainant. There is nothing to indicate that the appellant had been barred from calling any of the above witnesses or producing such evidence had they been considered so vital to the defense case. He relies on the Court of Appeal decision in Gounder v State [2015] FJCA 1; AAU0077.2011 (2 January 2015) in support of above contentions where unlike in the appellant’s case the accused had admitted having sexual intercourse with the 14 year old complainant leaving the only issue for the assessors and for the learned trial judge as to whether that sexual intercourse was with the consent of the complainant. Therefore, in my view the observations in Gounder cannot be simply applied to the appellant’s case. In any event, these complaints have to be examined in the context of the totality of the evidence and for that the complete record of proceedings is a must.
[35] The appellant has tried to substantiate his allegation that there was admission of hearsay evidence by referring to a person called Sai and the matters stated in the last 03 sentences of paragraph 15 of the summing-up. Paragraph 15 summarizes part of the complainant’s evidence and it is very difficult, if not impossible to assess the appellant’s complaint with such little information without perusing the entirety of the evidence led in the case. It is not clear whether those objectionable parts were relied on merely as part of the narration of the whole episode or whether the prosecution relied on them as the truth of what was stated to prove the case.
[36] Though, the appellant had criticized the trial judge for having allowed an amendment to the information during the trial, he had not stated what the amendment was, whether his counsel objected to it at that time and how it misled him or prejudiced his defense. Any complaint of this sort should be considered in the legal frame work provided in Saukelea v State [2019] FJSC 24; CAV0030.2018 (30 August 2019) where the Supreme Court held
‘[36] The main consideration in situations similar to this where there is some infelicity or inaccuracy of drafting is whether the accused knew what charge or allegation he or she had to meet: Koroivuki v The State CAV 7 of 2017; [2017] FJSC 28. Secondly it was important that the accused and his counsel were not embarrassed or prejudiced in the way the defence case was to be conducted: Skipper v Reginam Cr. App. No. 70 of 1978 29th March 1979 [1979] FJCA 6. ..’
[37] The appellant has also complained of the trial judge having elicited evidence favorable to the prosecution vis-à-vis penetration and criticized him for not having questioned the complainant whether she was medically examined after she had said that she went to the hospital. In any event, where necessary the trial judges have power to communicate directly with the witnesses in Fiji (see Vishal Chand & Ronil Ram v The State AAU0085 of 2012 (28 May 2015) para. 12-17]. While the appellant had not pointed out how and through what questions the trial judge had acted in favor of the prosecution by questioning the complainant, a judge in an accusatorial system of justice is not expected to play a fully-fledged inquisitorial role or the role of the defense counsel who would have strategically decided not to probe some matters any further and cannot be raised as a ground of appeal later [see Silatolu v State [2006] FJCA 13; AAU0024 of 2003S (10 March 2006)]
[38] The appellant also complains that he was not allowed to be present at the stage of the summing-up by the trial judge thereby violating his right to a fair trial in terms of sections 14(2)(h) and 15(1) of the Constitution. However, the veracity or the legal effect of this claim on the ultimate verdict cannot be verified without the complete appeal record at this stage.
[39] The appellant also argues that the trial judge had missed out some crucial pieces of evidence in the summing-up and the judgment particularly with regard to the evidence of Pita Keni vis-à-vis the evidence of the complainant. However, it appears from paragraphs 15 and 22 that there had been some inconsistences between the versions of the complainant and witness Pita highlighted by the judge to the assessors and the trial judge had treated the inconsistences as minor in paragraph 8 of the judgment. The appellant relies on State v Likunitoga [2018] FJCA 18; AAU0019.2014 (8 March 2018) to buttress his argument that the evidence of Pita of the complainant’s condition when he met her in the company of PC Ledua had not been suggestive of any distress on her part (and consequentially lack of consent) and the trial judge had failed to bring it to the notice of the assessors and himself. It has to be borne in mind that the appellant’s defense was not that of consent but a total denial and the alleged omission has to be evaluated in the context of the appellant’s defense.
4th and 5th grounds of appeal
[40] The appellant has not adequately elaborated as to how the trial judge had misdirected the assessors with regard to the second count. He has submitted that the trial judge had addressed them on a ‘non-existent’ charge of attempting to pervert the course of justice when the offence under section 190 of the Crimes Act was conspiracy to defeat justice and interfere with witnesses. I have not been provided a copy of the information and the amended information to see what exactly the second charge was. However, section 190(A) (e) appears to be the sub-section which contains the element of attempting to pervert the course of justice.
[41] If the appellant had entertained any concerns regarding the second count he could have raised it at the commencement of the trial which he had failed to do. The trial judge had referred to the second count in paragraphs 9, 10, 26 and 27 of the summing-up and 5 of the judgment. Had there not been an adequate directions on elements of the second count when the trial judge had given an opportunity for re-directions the appellant’s counsel should have raised it with the judge.
[42] The appellant also has submitted that the learned trial judge had failed to direct the need on corroboration of the second count. I do not think that there is much force in the appellant’s argument, for the evidence of the complainant was sufficient to prove both charges without corroboration if her evidence was believed beyond reasonable doubt.
[43] In the absence of any cogent reason for failing to seek redirection, the appellate court would be very slow to entertain such complaints arising out of alleged no-direction or misdirection (vide Tuwai v State [2016] FJCA 35; CAV0013 of 2015 (26 August 2016) and Alfaaz v State [2018] JFCA; AAU0030 of 2014 (08 March 2018).
[44] Whether the evidence presented was sufficient to sustain the second charge is a matter for the full court to decide with the benefit of the appeal record.
06th ground of appeal
[45] The appellant complains lack of directions on identification in the summing-up. The appellant has submitted that dock identification was unreliable in the absence of photo identification or identification parade. According to him he was not wearing ¾ length pants at the relevant time whereas the complainant had attributed that attire to the perpetrator.
[46] The state submits that the identification was never in issue at the trial. It appears from the summing-up and the judgment that it is the case. The appellant had run his case on false accusation and not mistaken identity. According to submission of the state the appellant had been with the complainant for more than an hour before the alleged offence of rape took place and later the complainant had seen him at the police station and recognized him immediately as referred to in paragraph 20 of the summing-up. Later the appellant is said to have visited her in the company of a few others to influence her to withdraw the complaint.
[47] Therefore, if the complainant is believed, there was no need for a photo identification or identification parade and it was not a case of first time dock identification but recognition of a person previously known and therefore the law relating to a first time dock identification including Turnbull guidelines may not be required. I have dealt with this kind of issue in Gonevou v State [2020] FJCA 21; AAU068.2015 (27 February 2020) and Delana v State [2020] FJCA 90; AAU115.2018 (24 June 2020) and Vuniwawa v State [2020] FJCA 91; AAU080.2017 (25 June 2020).
12th ground of appeal
[48] The appellant’s complaint on the second count being defective has already been dealt with.
15th ground of appeal
[49] The appellant’s complaint is based on section 142(3) of the Criminal Procedure Code. The learned trial judge had described the two counts as rape and attempting to pervert the course of justice in the summing-up and the judgment. He had not mentioned the sections in the Crimes Act, 2009 in the judgment. The appellant has not demonstrated how the validity of his conviction is adversely affected by the omission to mention the sections. Section 237 (3) specifically states that when the judge’s summing-up is on record it is not necessary for any judgment to contain or include any of the matters prescribed by section 142.
8th, 10th, 13th and 20th grounds of appeal.
[50] Under appeal ground 8, the appellant seems to complain about the failure of the trial judge to address the assessors of inconsistencies between the complainant’s evidence and her police statement. Upon a perusal of the summing-up and the judgment, I find that the trial judge had in fact directed the assessors on this matter in paragraphs 11, 12 and 19 of the summing-up and paragraph 8 of the judgment. He relies on Prasad v State [2017] FJCA 112; AAU105.2013 (14 September 2017) and Bijendra v State [2016] FJCA 111; AAU0056.2013 (30 September 2016) in support of his contention. While the legal propositions expressed in those decisions are well-articulated the appellant has not demonstrated how those alleged inconsistencies go the root of the matter and shake the foundation of the prosecution case.
[51] The appellant’s complaint under the 10th ground of appeal is that while the complainant had stated that the appellant was wearing ¾ length pants without top, the second prosecution witness had stated that he was wearing long pants and a shirt. I cannot see from the summing-up or the judgment that the 02nd witness having said what is attributed to him about the appellant’s attire but it is clear that the complainant and the 02nd witness were talking about two different occasions.
[52] Ground 13 and 20 are also connected to the above grounds and focus on the inadequacy of the learned judge’s directions on alleged inconsistencies which have not been highlighted in his submissions. In any event this issue has been already dealt with under some of the above grounds.
07th, 21st and 22nd grounds
[53] The 07th and 22nd grounds are based on recent complaint evidence as highlighted by the learned trial judge in paragraph 23 of the summing-up regarding the evidence of Pita Keni. The appellant seems to admit that recent complaint evidence was properly admitted in respect of rape charge but argues that it was improperly admitted in respect of the second charge.
[54] There is nothing to indicate that the trial judge had directed the assessors to consider the evidence of Pita Keni on the second count. Further, the alleged inconsistency in the versions of the complainant and Pita does not affect the admissibility of recent compliant evidence. It goes to the credibility of the complainant.
[55] In this regard the appellant relies on State v Likunitoga [2018] FJCA 18; AAU0019.2014 (8 March 2018) on recent complaint evidence and evidence of distress. But unlike in Likunitoga the trial judge had directed the assessors and himself specifically on recent complaint evidence (see paragraph 23 of the summing-up and paragraph 9 of the judgment). In Likunitoga the issue was total lack of reference to evidence of clear distress while the appellant complains of lack of reference to absence of distress. Absence of patent signs of distress could be due to many reasons and vary from victim to victim. All victims of sexual abuse do not react in a stereotyped manner. I do not think that a positive duty could be cast on trial judges to refer to lack of outward distress in every case. In any event these are matters the appellant’s counsel could have raised with the trial judge for redirections.
17th and 18th grounds
[56] The appellant finds fault with what the trial judge had said in paragraphs 5 and 25 of the summing-up and complains that the summing-up was not fair and balanced. He cites Nute v State [2013] FJCA 134; AAU0110.2008; 0019.2009 (6 December 2013) on what a summing-up should include while preserving the individual style of delivery by each individual judge. I do not think that the reference to ‘Fijian lifestyle’ in paragraph 5 is directed at ethnicity but a general direction on the assessors’ function as members of the society. The rest of paragraph makes that clear.
[57] The appellant has not demonstrated with examples why the summing-up has not lived up to the standard expected to be achieved as per observations in several decisions including Nute, Tamaibeka v The State AAU0051 of 1997 (08 January 1999). It is difficult at this stage to assess the impact of paragraph 26 and 27 of the summing-up on the assessors after the judge had would up the summing-up in paragraph 25. The full court will be in the position to decide whether the verdict should be set aside on any of the grounds mentioned in section 23(1) of the Court of Appeal Act or dismiss the appeal irrespective of any misdirection or non-direction in the summing-up.
23rd ground of appeal
[58] This ground of appeal consists of allegations and criticisms of the trial counsel. The Court of Appeal set down the procedure to be followed prior to advancing a ground of appeal based on criticism of trial counsel in Chand v State [2019] FJCA 254; AAU0078.2013 (28 November 2019). The attention of the appellant was drawn to this aspect when the matter was mentioned on 28 May 2020. However, he does not appear to have followed the guidelines given in Chand and therefore, I shall not consider this ground of appeal.
[59] By way of a general observation, I wish to add that section 35(4) of the CA Rules mandates that the notice of appeal shall precisely specify the grounds upon which the appeal is brought. Many of the appellant’s grounds of appeal lack this salutary requirement fully or partially which makes it harder for the appellate court to consider the merits of his appeal.
[60] The Court of Appeal in Gonevou v State [2020] FJCA 21; AAU068.2015 (27 February 2020) reiterated the requirement of raising precise and specific grounds of appeal and frowned upon the practice of counsel and litigants in drafting omnibus, all-encompassing and unfocused grounds of appeal. The Court of Appeal said
‘[10] Before proceeding further, it would be pertinent to briefly make some comments on the aspect of drafting grounds of appeal, for attempting to argue all miscellaneous matters under such omnibus grounds of appeal is an unhealthy practice which is more often than not results in a waste of valuable judicial time and should be discouraged.’
[61] In Rauqe v State [2020] FJCA 43; AAU61.2016 (21 April 2020) and Kishore v State [2020] FJCA 70 AAU121 of 2017 (05 June 2020) the above sentiments were repeated.
‘[14] It is clear that the sole ground of appeal is so broadly formulated that neither the respondent nor the court would have been in a position to understand what the real complaint of the appellant was. ....’
[62] In Rokodreu v State [2016] FJCA 102; AAU0139.2014 (5 August 2016)] it was stated:
‘[4].............. The grounds of appeal are vague and lack details of the alleged errors. The Notice states that full particulars will be provided upon receipt of the full court record. This is not a reasonable excuse for not complying with the rules requiring the grounds of appeal to be drafted with reasonable particulars so that the opposing party can effectively respond to them.
[5]............., the appellant cannot be excused for not providing better particulars of the alleged complaints in the summing up. Without reasonable details of the alleged errors, this Court cannot assess whether this appeal is arguable.
[63] Therefore, I cannot say at this stage that there is any ground of appeal argued by the appellant having a real prospect of success. Therefore, by logical extension, those grounds cannot obviously reach the much higher standard of ‘very high likelihood of success’ required for bail pending appeal.
[63] Though, the above conclusion is sufficient to dispose of the appellant’s enlargement of time application and bail pending appeal application, for the sake of completion, I shall now consider the length of delay, reason for the delay and prejudice to the respondent.
[64] The delay of 2 ½ months is not substantial. However, the appellant has not been truthful to this court as to the reason for the delay. It is unthinkable that the appellant, having been a police officer of 13 years’ experience at the time the offences were allegedly committed, was unaware of his right of appeal. In any event, he would have got to know of that right while being in the prisons with fellow inmates well before into his 2 ½ months of the sentence. It is also unbelievable that his trial counsel who was present even on the day of sentencing had not told him of his right of appeal. The respondent may not be prejudiced by the delay.
Order
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
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