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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 088 of 2018
[High Court of Lautoka Case No. HAC 106 of 2015]
Between:
PAULIASI RAISELE
Appellant
and:
STATE
Respondent
Coram : Prematilaka, JA
Counsel : Mr. K. Tunidau for the Appellant
: Mr. R. Kumar for the Respondent
Date of Hearing : 24 April 2020
Date of Ruling : 01 May 2020
RULING
[1] The appellant had been charged in the High Court of Lautoka on one count of rape of the complainant, 17 years of age, contrary to section 207(2) (a) and of the Crimes Decree No.44 of 2009. The charge was as follows.
Statement of Offence
RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act No. 44 of 2009.
Particulars of Offence
PAULIASI RAISELE tween the 1st st
[2] After full trial, two out of three asse assessors had expressed an opinion of guilty on 10 August 2018. The Learngh Court Judge in the judgmjudgment dated 13 August 2018 had agreed with the majority of assessors and convicted the appellant of the charge of rape. He was sentenced on 24 August 2018 to 11 years and 11 months of imprisonment with a non-parole period of 10 years.
[3] The appellant’s counsel had filed a timely notice of appeal and grounds of appeal on 13 September 2018 against conviction and sentence. Written submissions on his behalf had been filed on 28 August 2019 while the State had tendered its written submissions on 14 October 2019.
[4] The evidence presented by the prosecution and as narrated by the learned High Court judge is briefly as follows.
‘(i) On 25 January, 2015 the victim was alone at home since the other family members had gone to church. After cooking, she went to have her shower in the bathroom. Whilst in the bathroom, the accused came and opened the bathroom door. The bathroom did not have a lock. When the accused opened the bathroom door, the victim was wearing her bra and panty, the victim screamed and told the accused that he was not supposed to be doing this and he was not to come inside the bathroom.
(ii) The accused told the complainant that he wanted to have a relationship with her. The complainant replied that this cannot be because he was her brother in law. The accused wanted to have sexual intercourse with her and said that he was the boss of the house and he was the one who looks after everyone in the house.
(iii) The accused pushed the victim on the floor removed her panty and forcefully inserted his penis into her vagina. After having sexual intercourse the accused told the victim not to tell his wife about what had happened.
(iv) The victim was scared and did not know what to do she felt numbness from her hip downwards. The victim did not consent to what the accused had done to her.
(v) The matter was later reported to the police.’
[5] In addition the complainant had told one of her aunts that the appellant was touching her which she had not liked and used to push open the door of the bathroom when she was inside. During the ensuing discussion the appellant had sought forgiveness from the aunt and promised not to do what was alleged to have had done earlier.
[6] The appellant had completely denied the allegation, given evidence and called two witnesses on his behalf at the trial. His defense was one of alibi on the basis that he was at work from 4.00 a.m. to 1.00 p.m. on the day of the alleged incident at Nadi airport as an employee of Air Terminal Services Ltd and relied on the Time Sheet marked exhibit 6 to prove his position. He also had taken up the position that he sought forgiveness for having raised his voice on the complainant.
[7] There have been some inconsistencies and omissions in the evidence of the complainant and her aunt and the learned trial judge
had drawn the attention of assessors to them and left those with them to decide what weight they would attach to the same.
[8] The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018
[2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173 and Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87.
01st ground of appeal
[9] The appellant’s written submissions have in effect consolidated grounds of appeal Nos. 01,02,03,08,09,10,11 and 12 and submissions on ground 01 have covered the rest of the said grounds. They all deal with the appellant’s defence of alibi.
[10] The gist of the appellant’s contention is that a reasonable doubt was created by the Time Sheet marked as exhibit No.6 which shows that the appellant had been at work from 4.00 a.m. to 1.00 p.m. on the day of the incident and therefore could not have committed the act of rape as alleged by the complainant between 11.30 a.m. and 12.00 noon at home which was, of course, around 20 minutes’ drive from his work place.
[11] The complainant under cross-examination seems to have stated different times as to when the appellant had left home on the day of the incident. Once she had said that he went to work from 12-1 p.m. On another occasion she had claimed that at midday the appellant had taken others to church but under re-examination she had said that it was at 11 a.m. that the appellant took the other inmates of the house to church. She had, however, consistently maintained that when others had gone to church and she was alone at home the appellant had come home, raped her and again left for work.
[12] It is in that context that the appellant had relied on the Time Sheet marked as exhibit No.6 to buttress his alibi that he was elsewhere at work during the time the complainant says she was raped at home.
[13] The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of the offence by reason of his presence at another place. The plea can, therefore, succeed only if it is shown that the accused was so far away at the relevant time that he could not have been present at the place, where the crime was committed.
[14] According to the appellant, exhibit No.6 bears his signature at the commencement of his overtime shift at 4.00 a.m. and also his signature when he signed off at 1.00 p.m. on 25 January. However, Raj Deo’s (Catering Supervisor) evidence shows that the appellant could have left work place earlier (movement of workers being not recorded) and come back after one hour’s break (or perhaps one hour and 15 minutes) he was entitled to and sign off at 1.00 p.m. According to paragraph 73 of the summing-up, Raj Deo’s evidence has given rise to two possibilities; the appellant having taken the break between 11 a.m. and 12 noon or 12 noon to 1.00 p.m.
’73.The witness further stated that 25 January, 2015 was a busy morning and in his estimation taking into account the flight movement summary the accused would have most likely taken his break between 11am and 12 midday. The accused had 2 meal breaks and 1 tea break due, so he was entitled to one hour break and it was possible the accused could have taken his break from12 midday to 1pm.’
[15] The appellant’s evidence at the trial was that on the day of the incident he never left the work premises until 1.00 p.m. and in any event he could leave the premises only with the permission of the leading hand or the supervisor who was Raj Deo on the day of the incident. He had further stated that any such departure from the premises should have been recorded in the diary by any one of the said officers. Raj Deo had, of course, denied of such records being kept.
[16] If one concedes that the complainant may have guessed the time of the incident or the duration of the appellant’s stay in the house which is a possibility given that with regard to exact time or the time duration of an incident people usually make estimates by guess work and time sense varies from person to person [see Bharwada Bhoginbhai Hijibhai v State of Guarat [1983] AIR 753, 1983 SCR(3) 280 cited in several decision by the CA and SC in Fiji], it was not impossible for the appellant to have been present at the scene of the offence at or about the time spoken to by the complainant. Therefore, if one disbelieves the appellant’s alibi and believes the complainant’s evidence (with no corroboration being required in law) there appears to be sufficient evidence to justify the opinion of guilty by the majority of assessors which is also the basis of the conviction by the learned trial judge.
[17] Yet, no detailed inquiry into all factual matters raised in the summing-up, the judgment and now in the written submissions of both parties cannot be undertaken nor is it expected at this stage to go through such an exercise without the full record containing evidence and exhibits.
[18] Nevertheless, though not taken up by the appellant, the question whether the assessors were directed as to what they should do if they neither believed nor disbelieved the appellant’s alibi and whether the trial judge himself gave his mind to that scenario has to be answered in the negative going by the summing-up and the judgment. This may pose an important question of law in the light of the following discussion.
[19] In Ram v State [2015] FJCA 131; AAU0087.2010 (2 October 2015) the Court of Appeal said of the required direction in cases where there is a defense of alibi in the following words which were reiterated in Mateni v State [2020] FJCA 5; AAU061.2014 (27 February 2020).
‘[29] When an accused relies on alibi as his defence, in addition to the general direction of the burden of proof, the jury (in Fiji
the assessors) should be directed that the prosecution must disprove the alibi and that even if they conclude that the alibi was
false, that does not by itself entitle them to convict the accused (R v Anderson [1991] Crim. LR 361, CA0;
[20] The learned trial judge had in paragraphs 103 and 125 directed the assessors and himon thes sued in Ram and <i>Mateni. He cannot be faul faulted in that respect.
[21] A slightly different approach, however, had been taken in some other jurisdictions such as Australia, Sri Lanka and New Zealand. Section 150(8) of the Criminal Procedure Act 1986 (NSW) states that
“evidence in support of an alibi means evidence tending to show that, by reason of the presence of the accused person at a particular place or in a particular area at a particular time, the accused person was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.”
[22] In what would be the appropriate direction on alibi in NSW Roden J at 5-6 (Street CJ, Slattery CJ at CL concurring said in R v Amyouni NSWCCA 18/2/88 unrep. BC8802201:
“It seems to me that in every case where that situation is met, there are three possibilities, all three of which should be explained to the jury.” “One is that they accept the alibi, in which event they would be obliged to acquit The second is that they reject the alibi, in which case they would not necessarily convict but must assess the evidence as a whole. The third possibility is that although they do not accept the alibi, the also do not reject it in the sense that they regard it as something which could reasonably be true. In that event also, in such a case, they must acquit.”
[23] Again in R v Kanaan (2005) 157 A Crim R 238; [2005] NSWCCA 385 Hunt AJA (Adams and Latham JJ concurring) said
“[134] It was common ground that the Crown had to establish beyond reasonable doubt that the appellant was present at the crime scene. The appellant complains, however, that at no time did the judge ever in terms direct the jury that, in order to convict the appellant, they had to reject the evidence of alibi beyond reasonable doubt.”
“[135].... An alibi asserts that, at the relevant time, the accused was not at X (the scene of the crime) but at Y (somewhere else, according to the alibi evidence). The issue which it raises is whether there is a reasonable possibility that the accused was at Y, rather than X, at that time. To prove beyond reasonable doubt that the accused was at X, the Crown must remove or eliminate that reasonable possibility: Regina v Youssef (1990) 50 A Crim R 1 at 2-3. An appropriate direction to the jury would be:
The Crown must establish beyond reasonable doubt that the accused was at X at the relevant time. The Crown cannot do so if there is any reasonable possibility that he was at Y at that time, as asserted by the alibi evidence. The Crown must therefore remove or eliminate any reasonable possibility that the accused was at Y at the relevant time, and also persuade you, on the evidence on which the Crown relies, that beyond reasonable doubt he was at X at that time.”
[24] In Sri Lanka in Yahonis Singho v. The Queen (1964) 67 NLR 8 at 9-11 T. S. Fernando J. said
‘If the evidence of an alibi is accepted, such acceptance not only throws doubt on the case for the prosecution but, indeed, it does mere, it destroys the prosecution case and establishes its falsity. As the jury convicted the appellant, it must be assumed that they did not accept the evidence of Sirimane. The learned judge directed the jury, if we may say so with respect, correctly as to what course they should follow if they rejected the evidence of Sirimane. He, however, omitted altogether at both stages of his charge referred to above to give them any direction as to what they were to do if they neither accepted Sirimane’s evidence as true nor rejected it as untrue. Jurors may well be in that position in regard to the evidence of any witness. There was in this case no question of a shifting of the burden of proof which throughout lay on the prosecution. If Sirimane’s evidence was neither accepted nor was capable of rejection, the resulting position would have been that a reasonable doubt existed as to the truth of the prosecution evidence. We think the omission to direct the jury on what may be called this intermediate position where there was neither an acceptance nor a rejection of the alibi was a non-direction of the jury on a necessary point and thus constituted a misdirection.’
[25] Yahonis Singho was quoted with approval in Mannar Mannan v Republic (1987) 2 SLR 94 where, however, the proviso under section 334(1) of the Code of Criminal Procedure Act was applied and the conviction was upheld which was affirmed by the Supreme Court in Mannar Mannan v Republic (1990) 1 SLR 280.
[26] Blackstone’s Criminal Practice 1993 at page 1773 states
‘Although there is no general rule of law that in every case where alibi is raised the judge must specifically direct the jury that it is for the prosecution to negative the alibi, it is the clear duty of the judge to give such a direction, if there is danger of the jury thinking that an alibi, because it is called a defence, raises some burden on the defense to establish it (Wood (No.2) (1967) 52 Cr App R 74 per Lord Parker CJ). See also Johnson [1961] 1 WLR 1478 and Denney [1963] Crim LR 191.’
[27] It is well established that it is for the prosecution to negative an alibi as in the case of self-defence or provocation [See Killick v The Queen (1981) 147 CLR565; [1981] HCA 63; 37 ALR 407, R v Johnson (1961) 46 Cr App R 55; 3 ALL ER 969 and R v Taylor [1968] NZLR 981 at 985-6] because by raising an alibi , the accused was not undertaking to prove anything, and that onus remained on the Crown to remove or eliminate any reasonable doubt which may have been created by the alibi claim or any reasonable possibility that the alibi was true [ see R v. Small (1994) 33 NSWLR 575; 72A Crim R 462 (CCA)]. If the alibi evidence is so cogent as to engender in any reasonable mind a doubt of the accused’s guilt, the conviction must be quashed and a verdict of an acquittal entered, however cogent the prosecution evidence would otherwise be [see Palmer v R (1998) 193 CLR1; [1998] HCA 2; 151 ALR 16]
[28] I think that it is in the light of these decisions that one should reconsider as to what the appropriate direction particularly on the intermediate position on alibi defence should be in Fiji. However, it is within the domain of the Full Court of the Court of Appeal to make a pronouncement, if considered appropriate, at least for future guidance.
[29] Therefore, while I make no pronouncement whether there is a reasonable prospect of success in the appeal or not on the 01st ground of appeal urged by the appellant for want of full court record, I think on the question of law above highlighted the appellant should be given leave to go before the Full Court so as to inter alia afford the Court with an opportunity to clarify the law. I believe that the application or otherwise of the proviso section 23(1) of the Court of Appeal Act too may figure in the decision of the Court.
04th Ground of appeal
[30] This ground of appeal is based on paragraph 39 of the judgment which is as follows
‘I also accept the evidence of Raj Deo the supervisor of the accused, although he did not see the accused leaving the work premises before ending his shift at 1pm the only reasonable inference that can be drawn from the evidence of this witness points to the fact that firstly the accused was knocking off at 1pm he could not have attended to the flight that had arrived at 12.45pm. Secondly, the accused had accrued his meal breaks for one hour that day hence leaving before 1pm in lieu of his break of one hour cannot be ruled out. The evidence of Raj is supported by the complainant when she said the accused had come home when she was alone.’
[31] In the light of the fact that the learned trial judge had accepted the evidence of the complainant, her aunt Taina Ragatu and Raj Deo and rejected the evidence of the appellant in his judgment, he was entitled to draw the impugned inference in paragraph 39. Whether such an inference can or cannot be supported having regard to the evidence is not something that can be decided without having the benefit of the full record.
[32] Therefore, I make no ruling regarding this ground.
14th Ground of appeal
[33] The appellant’s complaint is based on paragraphs 37, 38 and 39 of the judgment. They are as follows.
‘37. Although the complainant did not tell her aunt all the details of what the accused had done to her including the fact that the accused did not have sexual intercourse, however, she did disclose material and relevant information about the unlawful sexual conduct on the part of the accused which was, the accused used to touch the complainant which she did not like. This evidence of the complainant’s aunt was relevant to the question of consistency or inconsistency of the complainant’s conduct and as such was a matter going to the complainant’s credibility and reliability as a witness see Anand Abhay Raj v , CAV 000V 0003 of 2014 (20 August, 2014).
38. I accept the evidence of the complainant’s aunty Taina Ragatu, she was also an honest ws who informed the court what the complainant had told her her and that the accused had sought forgiveness for touching the complainant. The complainant’s mother also told the truth that the accused or his wife never complained to her about the complainant.
39. I also accept the evidence of Raj Deo the supervisor of the accused, although he did not see the accused leaving the work premises before ending his shift at 1pm the only reasonable inference that can be drawn from the evidence of this witness points to the fact that firstly the accused was knocking off at 1pm he could not have attended to the flight that had arrived at 12.45pm. Secondly, the accused had accrued his meal breaks for one hour that day hence leaving before 1pm in lieu of his break of one hour cannot be ruled out. The evidence of Raj is supported by the complainant when she said the accused had come home when she was alone.’
[34] Having perused the summing-up and the judgment I do not think that there is merit in the appellant’s argument. It cannot be said that the complainant’s complaint had been elicited by posing questions of a ‘leading and inducing or intimidating character’, for otherwise the complainant could have been coerced to come out with the exact sexual act allegedly committed by the appellant. R v Osborne [1905] UKLawRpKQB 45; [1905] 1 KB 551 at 561; [1940-7] All ER Rep 54 at 59 and R v. Adams [1965] Qd R 255 at 264 are to be distinguished and cannot be applied to the facts of this case. Whether what the appellant had told her aunt could in law be considered as a recent complaint vis-à-vis the charge of rape is another matter altogether.
[35] There is no reasonable prospect of success in this ground of appeal.
15th ground of appeal
[36] The appellant criticises the learned trial judge’s comment that the appellant ‘had planned to do what he did’ in paragraph 11(b) of the sentencing order. The impugned paragraph is as follows.
‘The accused had planned to do what he did. He knew all the members of the family were attending the Sunday church service and the victim was alone at home. Furthermore, the victim was helpless and vulnerable at the time of the offending.’
[37] The learned High Court Judge had stated the above as an aggravating factor in the sentencing order. Since the learned trial judge had accepted the prosecution evidence and rejected the appellant’s evidence, there was a basis for the trial judge to have said that the appellant had planned the commission of the crime.
[38] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King [1936] HCA 40; #160;ef="http://www.paww.paww.paclii.org/cgi-bin/LawCite?cit=%281936%29%2055%20CLR%20499?stem=&synonyms=&query=leave%20to%20appeal%20st%20sentence"
title="View LawCiteRecord">(1936) 55 CLR 499, Kim Nam Bae v The Sthe State Criminal Appeal No.A5 and
<) Acted upon a wrong princirinciple;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.
[39] Therefore, this ground of appeal against sentence does not meet the required threshold for leave to appeal and has no merits.
Order
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
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