Court of Appeal of Fiji

[25] The learned judge’s decision to find a case for the appellant to answer in respect of count (2) is, however, debatable; and, I will address that issue separately in a later part of my judgement. Subject to above, the learned judge’s exercise of his power in light of the provisions of Section 231 of the Criminal Procedure Act, 2009, at the close of the prosecution’s case, is undoubtedly in accord with the law and the procedure adopted in a criminal trial.

[26] The learned judge’s decision to excuse the assessors at the deliberations to find out whether there was a case for the appellant to answer in relation to each count, as required under Section 231 (1) of the Criminal Procedure Act, shows that the learned judge was quite alive to the fact that such a matter must be deliberated on, in the absence of assessors to avoid a possible prejudicial impact on the appellant.

[27] However, having taken all cautionary measures at the close of the prosecution case, the learned judge appears to have fallen into error, when he referred to the objectionable part in paragraph (25), as noted above in the grounds of appeal, when he delivered the summing-up.

[28] The law on the point is very clear, as spelt out in Blackstone’s Criminal Procedure [2014], where it is stated at paragraph D 16.67:

Submissions of no case should be made in the absence of the jury, and should not be referred to in their presence thereafter if they are unsuccessful. This was made clear by the Court of Appeal in Smith (1986) 85 Cr App R 197. In that case, in which the identification evidence was relied on, the judge told the jury during the summing-up that, if he had not thought there was sufficient evidence of identification, he would have withdrawn the case from them. Watkins LJ said (at p.200 emphasis added):

That is an improper observation for a judge to make to a jury. Submissions [of no case to answer] are made in the absence of the jury. There is very good reason for that as all who take part in trials know. The question as to whether or not there is sufficiency of evidence is one which is exclusively for the judge following submissions made to him in the absence of the jury. His decision should not be revealed to the jury lest it wrongly influences them. There is a risk that they might convict because they think the judge’s view is a sufficient indication that the evidence is strong enough for that purpose.

(Underlined for emphasis)

Misdirection by the Judge

[29] The learned judge, in this case, was telling that: ‘...When a prima facie case was found against [the appellant], at the end of the prosecution’s case, wherein [the appellant] was put to his defence, he [chose] to give sworn evidence in [the appellant’s] defence and called no witness. That was [appellant]’s right.

[30] I am of the view that a direction to such an effect is not acceptable as it would give the indication to the assessors that the learned judge had already found a case against the appellant and that they (the assessors) should follow, accordingly. Although, the learned judge had taken all the procedural steps rightly in dealing with the no case to answer application at the end of the prosecution’s case in terms of Section 231, the above reference of having a prima facie case against the appellant in a summing up, as revealed in paragraph (25) is not permissible in law.

[31] Learned counsel for the state, both at the leave stage and at the substantive hearing, commendably conceded that the learned judge was in error in his reference as to the existence of a prima facie case against the appellant in paragraph (25) of the summing-up. Learned counsel’s concession assisted this court to determine an important issue in the way that the law should be, appreciating a laudable principle in criminal jurisprudence in this country as well as elsewhere.

[32] I, accordingly, hold that there is merit in the complaint made on behalf of the appellant in the first ground of appeal. Nevertheless, I subscribe to the view that, although the learned judge had made a general reference as to the existence of a prima facie case, he had not referred to any specific contested issue in a conclusive manner as found in Smith’s case (supra). Hence, I am of opinion that no perceivable prejudice could have caused to the appellant affecting the legitimacy of the trial.

[33] Moreover, upon consideration of the evidence and the way the case was run on behalf of the appellant, I do not think that there could have been substantial miscarriage of justice in light of the uncontroverted overwhelming evidence against the appellant in respect of the charges in counts (1), (3), (4) and (5). In the circumstances, notwithstanding the first ground bearing merit, I am of opinion that it would not furnish a concrete basis to uphold the appeal in order to reverse the finding of guilt against the appellant in respect of count Nos (1), (3), (4) and (5) on the information on application of the proviso to Section 23 (1) of the Court of Appeal Act. [Navaki v State [2019] FJCA 194; AAU0087.2015 (3 October 2019)].

[34] I, accordingly, reject the first ground of appeal as it is not capable of succeeding for the reasons set-out above.

Conviction on the 2^nd count

[35] I would now consider the propriety of the conviction of the appellant in respect of count (2) where the appellant stood charged for attempted rape punishable under Section 208 of the Crimes Act. The charge was founded against the appellant on the basis of the appellant allegedly attempting to have had carnal knowledge with SK, as the particulars of the offence disclosed in terms of count (2).

[36] This matter cannot, in my view, be left unaddressed once it became apparent on the face of the transcript of the record, although there was no ground of appeal to that effect. As a court hearing criminal appeals, it is indeed necessary to consider a matter, which appears to have been in error.

[37] Evidence of SK was that the appellant had only held her and tried to take-off the skirt. There was no any other evidence to show that the appellant was attempting to have carnal knowledge in a manner capable of establishing any of the elements of the offence of rape under Section 207 (1) read with 207 (2) (a) of the Crimes Act, 2009.

[38] Section 44 of the Crimes Act, 2009, provides that, for a person to be guilty of an ‘attempt’, the person’s conduct must be more than merely preparatory to the commission of the offence. On the facts and circumstances of this case, the conduct of the appellant does not, in my view, meet even the threshold of preparation to have carnal knowledge to bring home a charge of attempted rape. That is because the act of attempt, as complained of, was not proximate to any of the elements of the substantive offence of rape, as defined Section 207 (1) read with 207 (2) (a) of the Crimes Act, 2009. Hence, the charge of attempted rape in count (2) must necessarily fail.

[39] In the circumstances, I take the view that the learned counsel’s application at ‘no case to answer’ stage was correct and should have been upheld. I am of the view that the learned judge erred in holding that there was ‘some’ evidence against the appellant in respect of count (2) as the learned judge does not seem to have appreciated the matter in light of the definition of ‘attempt’ within the meaning of Section 44 of the Crimes Act, 2009.

[40] I, accordingly, quash the conviction entered against the appellant on count No (2); and, set-aside the sentence of three-year imprisonment passed thereon.

Second Ground of Appeal

[41] I will now turn to the second ground of appeal. The second ground related to the direction of the learned judge on identification. The learned single Justice of Appeal granted leave on the basis that the identification of the appellant was not an issue at the trial; and, that the learned judge mistook the denial of the allegations by the appellant as a case of disputed identification. This ground of appeal was based on the contents of paragraphs 32-34 of the summing-up. They read as follows:

(e) Identification of Accused by PW1 and PW2:

32. The accused, in his evidence, denied PW1 and PW2's allegation against him. So presumably, he must be taken to dispute the validity of PW1 and PW2 identifying him in court, as the person, who offended against them. In other words, the accused must be taken to dispute PW1 and PW2 identifying him, at the material times, when the alleged offences, were said to have been committed

33. I must therefore, as a matter of law, warn you as follows. First, whenever the case against an accused depends wholly or substantially, on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification, because an honest and convincing witness may be mistaken. Second, you must closely examine the circumstances in which the identification was made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? Has she any special reason for remembering the accused's face? Was a police identification parade held? Third, are there any specific weaknesses in the identification evidence? If the quality of the identification evidence is good, you may rely on it. If the quality is bad, you must reject it.

34. At all the times the accused allegedly raped PW2, they were in close proximity. PW2 clearly recognized the accused as the person offending against her. She recognized him as her uncle. There was no need for a police identification parade, because she recognized the accused as her uncle. Furthermore, the accused and PW2 lived next to each other, and almost see each other every day. The same arguments arises with PW1. When she was indecently assaulted, she was sitting next to the accused. She knew him as her grandfather. It would appear that the quality of PW1 and PW2 identifying the accused was of a high quality, and you may rely on them. It is a matter entirely for you.

[42] Learned counsel’s complaint in founding the second ground of appeal is that the directions on identification were wholly irrelevant and inappropriate, stating that they could cause confusion in the minds of the assessors. The position of the appellant was that he (the appellant) had not run the case on the basis of non-identification or mistaken identification but only on the basis of denials; hence, directions on identity became irrelevant.

Turnbull Guidelines

[43] When the contents of the relevant paragraphs are considered, it would appear that the learned judge had dealt with the issue [of identification] on the basis of some of the Turnbull guidelines (R v Turnbull [1977] QB 224) on identification. The summing-up on the issue, though concise, cannot be faulted as having contained misdirections, insofar as the guidelines on identification are concerned. However, the issue was whether such directions were necessitated in light of the complaint of the appellant that the assessors could get confused.

[44] The matter has to be looked into, in the context of the principle that the identity of an accused will always be a relevant issue to be factored in, in a criminal trial. The issue must not be left unaddressed so as to create even a slightest doubt.

Judge’s Role

[45] The scope of a summing-up; and, a trial judge’s role in a criminal case, were considered by the Supreme Court of Fiji in Ram v State [2012] FJSC 12: CAV0001.2011 (09 May 2102), having adopted what was said in Von Stark v the Queen 1 WLR 1270 at 1275. It was to the following effect:

The function and responsibility of the judge is greater and more onerous than the function and the responsibility of the counsel appearing for the prosecution and for the defence in a criminal trial. In particular, counsel for a defendant may choose to present his case to the jury in the way which he considers best serves the interest of his client. The judge is required to put to the jury for their consideration, in a fair and balanced manner, the respective contentions which have been presented. But his responsibility does not end there. It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial, whether or not they have all been canvassed by either of the partn their submissions. It is the df the judge to s to seto secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them.

[46] The responsibility to deal with the issue of identification always occupies a significant position in the overall functions of a trial judge. The law on identification was considered in Rusiate Savu v State [2014] FJCA 208; AAU0090.2012 (05 December 2014), where the Fiji Court of Appeal referred to Semisi Wainiqolo v State (Unreported Criminal Appeal No AAUu0027 of 2006; 24 November 2006 at [9]; and, Mesake Sinu v State (Unreported Criminal Appeal No AAU0037 of 2009; 13 March 2013 at [21] and held that Turnbull guidelines are accepted in Fiji.

Turnbull Guidelines on a Recognition and Identification Case

[47] Relying on the authority of the decision of the English Court of Appeal in R v Thomas [1994] Crim. L R 120, the Fiji Court of Appeal in Savu’s case (supra) faulted the Magistrate for her holding that the Turnbull guidelines were inappropriate as the case was not that of a fleeting glance but one of recognition. The Court of Appeal held that Turnbull guidelines would apply even to cases of disputed recognition as there was a need to assess whether a witness is mistaken in his or her purported recognition of the accused. The risk is assessed, it was held, by taking into the Turnbull guidelines against the circumstances.

[48] The Privy Council, in Beckford and Others v Reginam [1997] Crim. App R 409 at 413, held that a general warning on Turnbull lines was required in recognition cases as well as those involving the identification of a stranger, and the warning was nonetheless required even if the sole or main thrust of the defence was directed to the issue of identifying witness’s credibility, that is, whether his evidence was true or false, as distinct from accurate or mistaken.

[49] However, there seems to be some ambivalence in judicial precedents as to the applicability of Turnbull guidelines in recognition cases; but, in my view, it would be inappropriate to lay down an inveterate rule on its relevance or otherwise for its application universally as observed in Beckford’s case (supra at p 415).

Evidence and the Judge’s summing-up

[50] When the contents of the summing-up, in this case, are considered, I am of the view that they were not harmful or disadvantageous to the appellant. Instead, in the overall satisfaction of the burden of proof in light of the presumption of innocence, which continued to be in force favouring the appellant through-out the trial, I am inclined to think that it became incumbent on the learned judge to deal with the issue of identification in this case. The need could not have been dispensed with merely because the case was run by the appellant on the basis of denials.

[51] Conversely, the denials, in my view, brought into the fore the issue whether the complainants-SK and MN, had in fact mistaken the identity of the appellant instead of some other perpetrator of the ‘crimes’ on them. This could well have been troubling the minds of the assessors, which certainly would justifiably compel the learned judge to address them to be sure of the identity of the appellant.

[52] Moreover, the evidence of the appellant under cross-examination was that he was not at home when SK came to his house in 2009 and 2011; and, he was at home when the MN came to his house in 2013 to fetch tea leaves. Given the fact that the charges were laid in relation to unspecified dates during long spans of time in years 2009; 2011; and; 2013, the correct identification could really have emerged as a contentious issue in the minds of the assessors.

Conclusions

[53] I am of opinion that the learned trial judge was cautious enough, as he was required to be, and addressed the issue of identification quite rightly and within the parameters of the law. The learned judge cannot be faulted for this lawful exercise of his function so as to furnish a ground of appeal as formulated by the appellant in this case.

[54] Upon consideration of the facts and circumstances of the case especially the implication of the appellant on single offending incident each within a span of one year as charged, the learned trial judge had to be more cautious to be sure that the two complainants-SK and MN, did make no mistake as to the identification of the appellant in view of the long lapse of the time.

[55] I am of opinion that there was no room for conceivable confusion in the minds of the assessors causing substantial miscarriage of justice by the directions in paragraphs 32-34 of the summing-up. Therefore, the second ground of appeal is not entitled to succeed.

[56] I, accordingly, reject the second ground of appeal, as it is devoid of merit.

[57] As the appellant does not succeed in anyone of the two grounds urged before this court, I hold that the appeal should stand dismissed.

Orders are:

(i) Appeal against the conviction on count Nos. (1), (3), (4), and (5) dismissed;
(ii) Conviction on counts Nos. (1), (3), (4) and (5) affirmed;
(iii) Appeal against the conviction on count No (2) allowed;
(iv) Sentence on count (2) set-aside; and,
(v) Sentence of thirteen-year imprisonment with a non-parole period of eleven years in respect of count Nos. (1), (3), (4) with the concurrent sentence of one year on count (5), affirmed.

Hon. Mr. Justice S Gamalath
JUSTICE OF APPEAL

Hon. Mr. Justice C Prematilaka
JUSTICE OF APPEAL

Hon. Mr. Justice P Nawana
JUSTICE OF APPEAL