Court of Appeal of Fiji

[7] Rasaku the Se Court further heer held

‘These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application for enlargeof time. Ultimately, it is t 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.’

[8] I think the remarks of Sundaresh Menon JC in Lim Hong Kheng v Public Prosecutor [2006] SGHC 100 shed some more light as to how the appellate court would look at an application for extension of time to appeal.
‘(a)........
(b) In particular, I should apply my mind to the length of the delay, the sufficiency of any explanation given in respect of the delay and the prospects in the appeal.
(c) These factors are not to be considered and evaluated in a mechanistic way or as though they are necessarily of equal or of any particular importance relative to one another in every case. Nor should it be expected that each of these factors will be considered in exactly the same manner in all cases.
(d) Generally, where the delay is minimal or there is a compelling explanation for a delay, it may be appropriate to subject the prospects in the appeal to rather less scrutiny than would be appropriate in cases of inordinate delay or delay that has not been entirely satisfactorily explained.
(e) It would seldom, if ever, be appropriate to ignore any of these factors because that would undermine the principles that a party in breach of these rules has no automatic entitlement to an extension and that the rules and statutes are expected to be adhered to. It is only in the deserving cases, where it is necessary to enable substantial justice to be done, that the breach will be excused.’

[9] Sundaresh Menon JC also observed

‘27......... It virtually goes without saying that the procedural rules and timelines set out in the relevant rules or statutes are there to be obeyed. These rules and timetables have been provided for very good reasons but they are there to serve the ends of justice and not to frustrate them. To ensure that justice is done in each case, a measure of flexibility is provided so that transgressions can be excused in appropriate cases. It is equally clear that a party seeking the court’s indulgence to excuse a breach must put forward sufficient material upon which the court may act. No party in breach of such rules has an entitlement to an extension of time.’

[10] Under the third and fourth factors in Kumar, test for enlargement of time now is ‘real prospect of success’. In Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019) the Court of Appeal said

‘[23] In my view, therefore, the threshold flargemengement of time should logically be hithan that of leave tove to appeal and in order to obtain enlargement or extension of time ‘real prospect of success’ (160; #160;#160;[2002] QCA 56 (1 March 2002) o of the groe grounds of appeal......’

Length of delay

[11] As already pointed out the delay is more than 01 year and 04 months against conviction and almost 03 years and 03 months against sentence and therefore very substantial and unacceptable.

[12] In Nawalu v State [2013] FJSC 11; CAV0012.12 (28 August 2013) the Supreme Court said that for an incarcerated unrepresented appellant up to 3 months might persuade a court to consider granting leave if other factors are in his or her favour and observed.
‘In Julien Mil The State A160;AAU0076/07 (23rdber 20er 2007) Byrne J considered 3 months in a criminal matter a delay period which could nsidered reasonable to justify the court granting leave. The appellant in that case was 11&s 11½ months late and leave was refused.’

[13] Faced with a delay of 03 years in Khan v State ;[1609] 00CA 17; AAU0046.2046.2008 (13 October 2009) Pathik J observed that ‘There are Rules governing time to appeal. The appellant thinks that he can appeal anything he liHe han illsed by inmate in e in the pthe prisonrison. The court cannot entertain this kind of application’

[14] I also wish to reiterate the comments of Byrne J, in Julien Miller v The State AAU00 (23 October 2007) tha) that ‘that the Courts have said time and again that the rules of time limits must be obeyed, otherwise the lists of the Courts wou in a state of chaos. The law expects litigants and would-buld-be appellants to exercise their rights promptly and certainly, as far as notices of appeal are concerned within the time prescribed by the relevant legislation.’
[15] Therefore, delay alone is sufficient to defeat the appellant’s appeal if that is the only consideration.

Reason for the delay

[16] The appellant had stated in his affidavit that he was not sure whether he wanted to appeal and thought that the trial court was correct in passing judgment against him. Later with the assistance of his prison inmates and having obtained the summing-up, judgment and sentencing order he had realized that the court may have erred in its deliberations of the facts and evidence against him during the trial and tendered a notice of appeal in person on 22 July 2017 (sic).

[17] The appellant was defended by a counsel at the trial who, according to the state, was from the Legal Aid Commission and the appellant could have sought advice from him or LAC as to whether he should appeal against conviction and sentence. Therefore, the reasons given by the appellant for the substantial delay is not justifiable and the real reason appears to be that he had no real concerns about his conviction and sentence until inmates ‘advised’ him to appeal.
[18] Therefore, I am not convinced that the appellant has satisfactorily explained the delay.
[19] This court should and will not be hesitant to take a strict view in appropriate cases to ensure that the process of court is not abused and judicial time is not wasted by unmeritorious appeals which are filed belatedly more out of trying the appellant’s luck than out of any genuine grievance against the decision of the trial court.

Merits of the appeal

[20] In the State vsh Patel (AAU 2AAU 2 of 2002: 15mberember 2002) this Court, when the delay was some 26 months, stated (quoted in Waqa v State [2013] FJCA 2; AAU62.2011 (18ary 2that delay alone will not decide the matter of exof extension of time and the court would culd consider the merits as well.

"We have reached the conclusion that despite the excessive and unexplained delay, the strength of the grounds of appeal and the absence of prejudice are such that it is in the interests of justice that leave be granted to the applicant."

[21] Therefore, I would proceed to consider the third and fourth factors in Kumar regarding the merits of the appeal as well in order to consider whether despite the substantial delay and want of an acceptable explanation, still the prospects of his appeal would warrant granting enlargement of time.

[22] Grounds of appeal urged on behalf of the appellant are as follows.

Against Conviction:

Ground 1: That the Learned Trial Judge erred in law by not adequately and properly directing the assessors on the issue of consent.

Ground 2: That the Learned Judge caused the trial to miscarry when the Summing Up lacked fairness and balance.
Against Sentence:

Ground 1: That the Learned Trial Judge erred in principle when sentencing the Appellant, in particular, to the following:

1. considering 11 years as the appropriate starting point;
2. enhancing the sentence by 4 years after considering the aggravating factors;

100. considering the Applicant as a first offender as the only mitigating factor thus deducting only 1 years; and

4. choosing a non-parole period that is close to the head sentence.
   

01^st ground of appeal

[23] The defence taken up by the appellant had been ‘consent’ on the part of the complainant. He alleges that the trial judge had not given adequate directions on the question of consent. He cites paragraphs 39, 45 and 47 as examples to highlight the evidence of what he called consent on her part.

‘39. Prosecution called complainant as the fourth witness. She is 17 years old now. In January 2014 she had gone to Navivi to visit her maternal grandmother. She had stayed there till 28.2.2014. Then she had visited her uncle (accused) and aunt. Aunt was her mother's younger sister. On 3.3.2014 around 6.30 a.m. she was sleeping with her aunt in the bed room on a double bed. Aunt got up and went to Naniu village looking for some herbal medicine. The accused came to the bed room and told her to shift in the bed. She thought that he came to put the blanket and the pillow. When she shifted, he started to touch her breast and take off her clothes. Then he sucked her nipples. Then he took off her sulu and grabbed her. He pressed her shoulders. Then he took off his clothes. Then he inserted his penis in to her vagina. She was frightened. She did not shout as he could kill her or hurt her. She tried to push him away. She did not consent to sexual intercourse. She told him that she was not consenting. She knew that the accused is her small father and he could not do that to her. It was for about two minutes.

‘45. The accused elected to give evidence. He stated that he is 41 years old and married with three children. The complainant is his niece. On 3.3.2014 around 6.30 a.m. he was alone at home with niece as wife had gone to another village. He had gone to the place where the complainant was sleeping. He told her to shift. Then he lay beside her for few seconds. Then he started to hug her. He felt that she wanted what he was doing to her. Then he touched her breast and took off her top. Then she asked her 'where is the aunt? He had told her that she had gone to get some herbal medicine. Then he got down and took off her panty. When he was about to insert his penis in to her vagina she told him to ejaculate outside. He had sexual intercourse with her for about two minutes. His understanding is that she consented. Then she was asked to go and wash herself and prepare the breakfast. He did not threaten her.

‘47. Under cross examination he stated that the complainant did not say anything about consent. Then he assumed that consent was given. She did not by words consented to him to have sexual intercourse. He did not pin her down but was holding her. She was not able to move as he was holding her. He told the complainant to keep it between him and her. He admitted that he is telling the complainant consented to avoid the guilt.

[24] It is clear that the appellant had assumed consent on the part of the complainant as he had felt that she wanted what he was doing and his understanding was that she was consenting as she did not say anything about consent. The evidence of the complainant was, of course, otherwise. She seemed to have been taken aback by the totally unexpected behaviour of the appellant who was her small father (mother’s sister’s husband) and she had not physically resisted a great deal other than trying to push him away and telling him that she was not agreeing with what he was doing as she thought that the appellant could not do something like that to her. This feeling is quite understandable on the part of a 17 year old girl in front of one of her own elders or protectors.

[25] The appellant naively seems to think that lack of consent means putting up a lot of resistance or the absence of a declaration, loud and clear, of withholding consent by the victim, for otherwise consent would be presumed! Given the relationship between the appellant and the complainant this assumption on the part of the appellant could only be described as opportunistic and self-serving.

[26] The trial judge on his part had addressed the assessors on the legal concept of consent in paragraphs 19 and 20 of the summing-up. He had then given them the factual context in paragraphs 39-42.

19. Consent as defined by section 206 of the Crimes Decree, means the consent freely and voluntarily given by a person with a necessary mental capacity to give such consent. A child under age of 13 years is considered by law as a person without necessary mental capacity to give consent. The complainant in this case was above 13 years of age on 3.3.2014 and therefore, she had the capacity under the law to consent. So, the prosecution has to prove the absence of consent on the part of the complainant and the accused knew that she was not consenting. Further bear in mind submission without physical resistance by a person to an act of another person shall not alone constitute consent.
    
20. A person's consent to an act is not freely and voluntarily given if it is obtained-

(i) by force; or

(ii) by threat or intimidation; or

(iii) by fear of bodily harm; or

(iv) by exercise of authority; or

(v) by false and fraudulent representations about the nature or the purpose of the act.

40. After that he told her to go and have a bath and fry bread fruit. He told her not to inform the aunt. The aunt returned home after 7.00 a.m. She told the aunt the following day. She was frightened to tell her earlier. The matter was reported on 24th March. Aunt told her if the accused goes to jail no one to look after the children and family. The matter was reported as the accused and aunt had an argument. She identified the accused in Court.
    
41. Under cross examination she admitted that there are houses nearby to the accused's house. She admitted that she never shouted or yelled. She woke up when the accused came and started touching her. She did not run out. She did not ask the accused 'where is the aunt? before the accused took off her panty. She was frightened and confused. The accused grabbed her and took off her clothes using both hands. She denied telling the accused not to ejaculate in side. Accused had sex while kneeling on the bed. She was frightened the way the accused told her not to tell the aunt. She did not complain to aunt when she returned that morning. Seeing aunt she felt some guilt inside her. She was frightened about the accused when she saw the aunt. Accused kept repeating not to tell the aunt. She pushed the accused at the time he was having sex but the accused grabbed her. She did not yell or ran out of the house. She denied that the reason not to yell or ran out of the house is that she consented to sexual intercourse. After the incident she continued to live in that house. Before and after the incident the accused treated her nicely in the house. But sometime he talked like ordering her.’
    
42. In re-examination she said that she did not run out as the accused had grabbed her by shoulders. She felt frightened and confused.
    

[27] It is obvious that the appellant had used his authority as the small father of the complainant to subdue her and obtained her surrender to satisfy his lust. Such ‘consent’ is not consent at all.

[28] In paragraphs 43 and 49 of the summing-up respectively the trial judge had addressed the assessors as to how to evaluate the evidence of the complainant and the appellant.

‘43. You watched her giving evidence in court. What was her demeanour like? How she react to being cross examined and re-examined? Was she evasive? How she conduct herself generally in Court? What is the relationship between her and the accused? Was there any reason for her to falsely implicate the accused? How she conducted herself after the incident? Was there any explanation for the delay in informing the aunt? Given the above, my directions on law, your life experiences and common sense, you should be able to decide whether witness's evidence, or part of a witness's evidence is reliable, and therefore to accept and whether witness's evidence, or part of evidence, is unreliable, and therefore to reject, in your deliberation. If you accept the evidence of the complainant beyond reasonable doubt then you have to decide whether that evidence is sufficient to establish all elements of the charge.’

‘49. You watched the accused giving evidence in court. What was his demeanour like? How he react to being cross examined and re-examined? Was he evasive? How he conduct himself generally in Court? His position taken up in Court that the complainant consented for the sexual intercourse is different from the position taken in the charge statement. In other words his evidence is inconsistent. It is up to you to decide whether you could accept his version and his version is sufficient to establish a reasonable doubt in the prosecution case. If you accept his version accused should be discharged. Even if you reject his version still the prosecution should prove its case beyond reasonable doubt.’

[29] Therefore, there were two versions before the assessors and the trial judge on the issue of consent. What is required of a trial judge when there is a ‘word against word’ conflict between prosecution and defence had been dealt with in Gounder v State [2015] FJCA 1; AAU0077 of 2011 (02 January 2015) and Prasad v State [2017] FJCA 112; AAU105 of 2013 (14 September 2017). What is known as Liberato principles deal with evaluating the evidence of the prosecution and defence and this direction is usually given in cases turning on the conflicting evidence of a prosecution witness and a defence witness. The direction requires that, ". . . even if the jury does not positively believe the defence witness and prefers the evidence of the prosecution witness, they should not convict unless satisfied that the prosecution has proved the defendant's guilt beyond reasonable doubt".

[30] In Liberato v The Queen [1985] HCA 66; 159 CLR 507 High Court of Australia held:

‘11. When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue....’

[31] In De Silva vQueen #160; [2019] HCA 48i(decided 13 December 2019) the position taken up by the majority on the High Court was that a "Liberato direction" is used to clarify and reinforce directions on the onus and standard of proocases in which there is a rs a risk that the jury may be left with the impression that ". . . the evidence upon which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt." As a result, a "Liberato direction" need only be given in cases where the trial judge perceives a real risk that the jury might view their role in this way, regardless of whether the accused's version of events is on oath or in the form of answers given in a record of police interview.

[32] Prasad was a case where (of course, in different circumstances to the current appeal) the appellant took up the consistent position that his indulgence in the act of sexual intercourse with the victim was consensual whereas the complainant’s evidence was that the appellant engaged in sexual intercourse with her without her consent and there was seemingly no other credible evidence (though some evidence led at the trial) to buttress the complainant’s version the credibility of which itself was called into question, the Court of Appeal said as follows.

‘[44] In my opinion, trial judges dealing with evidence of a case should necessarily leave the assessors with the following directions:

(i) that the onus of proving each ingredient of a charge rests entirely and exclusively on the prosecution and the burden of proof is beyond any reasonable doubt.

(ii) that in assessing the evidence, the totality of evidence should be taken into account as a whole to determine where the truth lies.

(iii) that in situations where there is evidence adduced on behalf of an accused, it is incumbent on the assessors to examine such evidence carefully to decide, not necessarily whether they believe that evidence or not, but whether such evidence is capable of creating a reasonable doubt in their minds.

(iv) that in other words, if they believe the evidence adduced on behalf of the defense, which means the prosecution has failed to prove the case beyond any reasonable doubt and hence the benefit of the doubt should enure in favor of the accused and he shall therefore be acquitted.

(v) that on the other hand in the scenario of the assessors neither believe the evidence adduced on behalf of the accused nor they disbelieve such evidence, in that instance as well, there is a reasonable doubt with regard to the prosecution’s case and the benefit of doubt should then enure in favor of the accused and he should then be acquitted.

(vi) that in a situation where the assessors totally disbelieve the evidence adduced on behalf of the accused, the assessors should still consider whether the prosecution’s case can stand on its own merits. Which means whether the case has been proven beyond any reasonable doubt. In another word, the mere fact that the accused’s version has been rejected for its veracity, it does not mean the case for the prosecution has been proven beyond any reasonable doubt.

[33] It is clear that from paragraphs 50-55 of the summing-up the trial judge had directed the assessors more or less on what was prescribed in Prasad.

50. I must remind you that when an accused person has given evidence he assumes no onus of proof. That remains on the prosecution throughout. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    
51. You will generally find that an accused gives an innocent explanation and one of the three situations then arises:
    

(i) You may believe him and, if you believe him, then your opinion must be Not Guilty. He did not commit the offence.

(ii) Alternatively without necessarily believing him you may say 'well that might be true'. If that is so, it means there is reasonable doubt in your minds and so again your opinion must be Not Guilty.

(iii) The third possibility is that you reject his evidence as being untrue. That does not mean that he is automatically guilty of the offence. The situation then would be the same as if he had not given any evidence at all. He would not have discredited the evidence of the prosecution witnesses in any way. If prosecution evidence proves that he committed the offence then the proper opinion would be Guilty.

54. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies with the prosecution throughout the trial, and never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt.
    
55. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of accused's guilt of the charge you must find him guilty for the charge. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of accused's guilt, you must find him not guilty for the charge.
    

[34] Therefore, I conclude that there is no real prospect of success in the first ground of appeal.

[35] In the present appeal the wife of the appellant had confirmed that the complainant looking scared had told her on the following day (04 March 2014) at the breakfast time that the appellant had raped her and started crying. In his charge statement which was agreed to as an admitted fact at the trial, the appellant had admitted that he had raped the complainant. The appellant’s wife’s evidence enhances the credibility of the complainant’s evidence while the appellant’s confession in the charge statement greatly diminishes the credibility of his narrative of consensual act of sexual intercourse advanced at the trial.

[36] The trial judge in his judgment in paragraphs 5 and 6 had once again considered the aforesaid items of evidence and rightly rejected the appellant’s defence and held that the prosecution evidence had established the guilt of the appellant beyond reasonable doubt.

02^nd ground of appeal

[37] The appellant argues that the summing-up lacked fairness and balance. He states that nowhere had it been said by the trial judge that absence of consent must be established by the prosecution. I find that in paragraphs 7 and 8 of the summing-up the judge had informed the assessors that the burden of proof rested on the prosecution and the standard of proof was beyond reasonable doubt. With regard to the elements of the offence of rape in paragraphs 19 and 21 he had stated that the prosecution had to prove absence of consent and that the appellant knew that she was not consenting. Since then the Court of Appeal had held that even recklessness on the part of the accused is sufficient to establish the fault element of rape. The Court of Appeal in TukainState&#/b> [2017] 118&#1b>

&#‘[34] .............. Therefore, in a case of rape the fault element would be established if the prosecution proves inte, knoe or recklessnesssness as defined in sections 19, 20 or20 or 21 respectively. The presence of any one of the three fault elements would be sufficient to prove the fault element of the offence of rape