Home | Databases | WorldLII | Search | Feedback Court of Appeal of Fiji

  Download original PDF

Balak v State [2021] FJCA 112; AAU132.2015 (3 June 2021)

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

CRIMINAL APPEAL NO.AAU 132 of 2015

[In the High Court at Suva Case No. HAC 260 of 2014]

BETWEEN:
SHIU BALAK

Appellant

AND:
STATE

Respondent

Coram: Prematilaka, JA
: Bandara, JA

: Temo, JA

Counsel: Ms. S. Nasedra for the Appellant

: Ms. P. Madanavosa for the Respondent

Date of Hearing: 11 May 2021

Date of Judgment: 03 June 2021

JUDGMENT

Prematilaka, JA

[1] The appellant had been indicted in the High Court of Suva with one count of rape contrary to section 207 (1) and (2)(a) of the Crimes Act, 2009 and two counts of defilement contrary to section 215 (1) of the Crimes Act, 2009 committed at Tailevu in the Eastern Division on three different occasions.

[2] At the end of the summing-up, the assessors had unanimously opined that the appellant was guilty of all counts. The learned trial judge had agreed with the opinion of the assessors in his judgment, convicted the appellant as charged and sentenced him to imprisonment of 13 years for rape and 04 years each for the two offences of defilement (all sentences to run concurrently) with a non-parole period of 11 years.

[3] The appellant’s appeal against conviction and sentence had been timely. The following grounds of appeal had been canvased against conviction by the Legal Aid Commission. The sentence appeal had not been pursued at the leave to appeal hearing. The single Judge had allowed leave to appeal on the first and second grounds of appeal on 06 December 2018. All appeal grounds filed were as follows:

‘(i) The learned Judge erred in law by failing to adequately and properly direct the assessors on the defence available to an accused person charged with the offence of Defilement.

(ii) That the learned trial Judge caused the trial to miscarry when the summing up lacked fairness and balance.

(iii) That the conviction entered against the Appellant is unsafe and unsatisfactory giving rise to a grave miscarriage of justice.

(iv) That the learned Sentencing Judge was not consistent and uniformed in sentencing the Appellant thus erring in law.’

Factual matrix

[4] The appellant and the complainant’s father had been co-workers on a dairy farm in Tailevu. They both lived nearby. The two were on friendly terms and the complainant would call the appellant "uncle". It had been agreed between the two men that the complainant could assist the appellant doing chores such as cleaning his van.

[5] In January 2014 when the complainant was 12 years and 11 months old, the appellant had picked her up from home to wash his van. He had taken her to the farm and to the milk tank shed where he made her lie on a sack on the floor and raped her. He had given her $20 (ostensibly for van cleaning, but she didn't do any).

[6] In June 2014 when the complainant was 13 but under 16 the appellant had again picked her up from home to clean his van. He had again taken her to the farm and this time he had made her lie down in the animal feed store where he had indulged in sexual intercourse with her. He had given her $20.

[7] In July 2014, the appellant had collected her from home to take her to his home to "clean the window". He had made her lie on his bed in his home and again had engaged in sexual intercourse with her. For this he had given her $50.

[8] These incidents had been detected on enquiry by her teacher who saw that the complainant had an unusual amount of money with her. Then, the incidents had been told to two female teachers by the complainant, whom she trusted and thereafter her father too had been told. The complaint's father, brother and teacher had confirmed the complainant's evidence with relation to the three events. The teacher had even told court that he was stopped in the street by the appellant who was known to him and who said to the teacher "please save me".

[9] The medical evidence had disclosed no sign of injury and the hymen was intact. The doctor had said that if the abuse were more than 72 hours before examination there would be no bruising or laceration and as such a young girl even the hymen would heal and become intact again.

[10] At the trial the appellant gave evidence and denied any contact whatsoever with the complainant.

01^st ground of appeal

[11] The appellant’s argument based on Reddy v State [2018] FJCA 10; AAU06 of 2014 (08 March 2018) is that the trial judge’s directions on the defences available to an accused charged with the offence of defilement is inadequate. The impugned paragraphs in the summing-up are as follows:

‘10. Defilement is the act of sexual intercourse with a degree of penetration of a person over 13 years old but under the age of 16.

11. The State must prove to you that there was an act of sex including penetration to some degree. Consent has nothing to do with it. There is a defence to the charge, but I won't bother you with that because the accused never relied on that defence. His defence is, as you know, that it never happened.’

[12] Section 215 of the Crimes Act, 2009 reads as follows:

‘215.— (1) A person commits a summary offence if he or she unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any person being of or above the age of 13 years and under the age of 16 years.

Penalty — Imprisonment for 10 years.

(2) It shall be a sufficient defence to any charge under sub-section (1) if it shall be made to appear to the court that the person charged had reasonable cause to believe, and did in fact believe, that the person was of or above the age of 16 years.

(3) It is no defence to any charge under sub-section (1)(a) to prove that theon consentnsented to the act.’

[13] If an accused takes up the defence under section 215(2) of the Crimes Act, 2009 in a case where his is charged with an offence of defit, his burden is set out inut in Reddy as follows:

‘[28] It is clear from section 215 (2) that if and when an accused takes up the defense stated therein two requirements must be satisfied; the first is objective and the second subjective. It must be made to appear to the court firstly, that the accused ‘had reasonable cause to believe’ and secondly, that he ‘did in fact believe’ that the victim was of or above the age 16 years. This evidential burden should be discharged by adducing or pointing to evidence that suggests a reasonable possibility that both of the said requirements exist (vide section 59).’

[14] However, in this case the appellant did not take up the defence under section 215(2) of the Crimes Act, 2009. His defence was a total denial. Therefore, direction on the statutory defence under section 215(2) of the Crimes Act, 2009 was irrelevant and unwarranted.

[15] In Reddy neither consent (in respect of the rape charge) nor age (in respect of the defilement charge) had been raised by the appellant and the court held that once the appellant had indicated that his defence was that no act of sexual intercourse took place, then the issue of age which is the basis of the statutory defence, is irrelevant. The court proceeded to hold:

‘[7] In my view once the Appellant had indicated that his defence was that no act of sexual intercourse took place, then the issue of age which is the basis of the statutory defence, is irrelevant. Questions by Counsel relating to age should not have been allowed. The obligation of the trial judge to consider whether to give directions on defences rests on there being some evidence adduced during the trial that warrants consideration of that defence by him and whether to give directions. In this case there was no evidence that related to what the Appellant believed to be the age of the complainant nor was there any evidence as to the appearance of the complainant at the time of the alleged sexual intercourse. There was no challenge to the age of the complainant and the defence was not raised by any evidence given by the Appellant.

[8] Under those circumstances it was not necessary for the trial judge to raise the defence in his summing up let alone give detailed directions as to whether the defence was available on the evidence. In fact in the absence of the defence being raised by the appellant in the form of some evidence that satisfied the evidentiary burden it is difficult to understand how the Judge could give meaningful directions.

[9] In my judgment it is unnecessary to consider ground 1 which seeks to challenge the learned trial judge’s directions or the lack thereof on the statutory defence when it was not raised in evidence nor relied upon by the Appellant. For that reason I conclude that there is no merit to ground 1.’

[16] It is the duty of a trial judge in Fiji to decide whether on the evidence he should direct the assessors and himself on the availability of any alternative defence or verdict that is not raised by the defence (Praveen Ram v The State [2012iji LR 34. However, thr, there was no other defence either that arose from the evidence in this case requiring the trial judge to direct the assessors.

[17] It was said in ddy that in the ordinary course of events the defences available to an accused charged with defilement would include (a) that he was not the person who committed the act as he was not present at the time, or (b) that he was present but that sexual intercourse never took place or (c) that he had reasonable cause to believe and did in fact believe that the other person was of or above the age of 16 years. This is not by any means an exhaustive list. It is clear that the first defence is when an accused takes up an alibi. The second relates to denying the physical element of rape and defilement. The third is the statutory defence available under section 215(2) of the Crimes Act, 2009. The appellant had not alluded to any of them. His defence was a denial simpliciter.

[18] Therefore, the above narrative in Reddy on defences available in defilement cases should not be construed, as done by the appellant’s counsel, to mean that trial judges are required to address the assessors on these positions in every case. In any event, none of these defences was taken up by the appellant whose evidence had been that none of the incidents alleged ever happened. According to him, he was completely oblivious to the three incidents.

[19] Therefore, there are no merits in this ground of appeal.

02^nd ground of appeal

[20] The single Judge had left it to the full court to decide the second ground of appeal on the summing-up lacking fairness and balance having regard to the appeal record.

[21] The trial judge had specifically dealt with the age of the complainant at paragraph 9 of the summing-up and the appellant had not made delay a live issue at the trial for the trial judge to deal with it. In any event, how the incidents of sexual abuse came to light and reported to the police after the complainant was found to be having $50 in her possession at school had been well documented at paragraphs 21, 27 and 28 in the summing-up. The delay in reporting, in my view, passes ‘the totality of circumstances test” as set out in State v Sere/u>< [2018] FJCA 163; AAU141.2014 (4 October 2018ch died asow to deal with a&#160 &; #160;bdcomplainplaint.