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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 118 of 2018
[In the High Court at Suva Case No. HAC 139 of 2017]
BETWEEN:
WAISEA DOBUI
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, JA
Counsel: Mr. M. Fesaitu for the Appellant
Mr. M. Vosawale for the Respondent
Date of Hearing: 18 January 2021
Date of Ruling : 19 January 2021
RULING
[1] The appellant had been indicted in the High Court of Suva on four counts of rape contrary to section 207(1) and (2) (b) and (3) of the Crimes Act, 2009 and two counts of sexual assault contrary to section 210 (1) (a) of the Crimes Act, 2009 committed at at Qarani village, Gau in the Eastern Division. The victim was 12 years old and the appellant was her step father at the time of the commission of the offences.
[2] The information read as follows.
‘COUNT ONE
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act 2009.
Particulars of Offence
WAISEA DOBUI on the 17th&day ;day of March, 2017, at Qarani village, Gau in the Eastern Division, penetrated the vagina of AB a child under the ag13 year years with his tongue.
COUNT TWO
Statement of Offence
SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act 2009.
Particulars of Offence
WAISEA DOBUI on the 17
COUNT THREE
Stateof Offence
RAPE: Contrary to Section 207 (1) and (2) (b)) (b) and (3) of the Crimes Act 2009.
Particulars of Offence
WAISEA DOBUI on24th day ;day of Marc17, at Qara Qarani village, Gau in the Eastern Division, penetrated the vagina of AB ild under ther the age3 yeath his tongue.
Statement of Offence/p>
SEXUAL ASSAULT: Contrary to y to Section 210 (1) (a) of the Crimes Act 2009.
Particulars of Offence
WAISEA DOBUI on the 24th&day ;day of March 2017, at Qarani village, Gau in the Eastern Division, unlawfully and indecently assaulted AB by ru his penis on her her anus
COUNT FIVE
Statement of Offence
RA>i>: Contrary to Section 207 (1) and (2) (b) and (and (3) of3) of the Crimes Act 2009.
Particulars of Offence
WAISEA DOBUI on the 13
COUNT SIX
Statement of Offence
RAPE: Con to Sn 207 (1) and (2)d (2) (b) (b) and (3) of the Crimes Act 2009.
Particulars of Offence
WAISEA DOBUI on the 13th day of 2017, at Qarani vili village, Gau in the Eastern Division, penetrated the vagina of AB&# child under ther the age of 13 years with his finger.
[3] The brief as cbe gathered from from the sthe sentencing order are as follows.
‘3. It was proved at the conclusion of the hearing that you penetrated the vagina of the Complainant with your tongue on three different occasions on the 17th of March, 24th of March and 13th of April 2017. On the 24th of March 2017, you have unlawfully and indecently rubbed your penis on the anus of the Complainant. It was further proved that you have penetrated the vagina of the Complainant with your finger on the 13th of April 2017. The Complainant was twelve years old at the time of these incidents took place. She is your step-daughter.’
[4] At the end of the prosecution case the appellant had been acquitted of count 02 for want of evidence. At the conclusion of the summing-up on 26 March 2018 the assessors had unanimously opined that the appellant was guilty of other 05 counts. The learned trial judge had agreed with the assessors in his judgment delivered on the same day, convicted the appellant on all remaining five counts and sentenced him on 27 March 2018 on four counts of rape to a sentence of 14 years each and on the remaining count of sexual assault to a sentence of 04 years of imprisonment; all sentences to run concurrently. After deducting the remand period the ultimate sentence was 13 years and 07 months with a non-parole period of 11 years and 07 months.
[5] The appellant’s untimely application for leave to appeal against conviction and sentence had been filed in person on 21 November 2018 followed by written submissions on 06 May 2019. The Legal Aid Commission had tendered a notice of motion dated 25 September 2020 seeking enlargement of time accompanied by the appellant’s affidavit, amended grounds of appeal and written submissions. The state had tendered its written submissions on 05 November 2020.
[6] 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 RasaState CAV0009, 001, 0013 of 2009A 24 April 2013 [2013] FJSC 4, Kumar v State; Sinu v State CAV0001 of 2009: 21 A 2012&2012 [2012] FJSC 17.
[9] 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.’
[10] 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.’
[11] 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, hreshold for enlargemengement of time should logically be160;higher than than that of leave to appeal and>in order to obtain enlargement or extension of time the appelmust satisfytisfytisfy this court that his appeal not only #8216;merits’ and woud would probably succeed but also has a ‘real prospect of success’ (seeR v M #160;[2QCA 56 (1 March 2002) on any o groe grounds of appeal......’
Length of delay
[12] The delay is about 07 month and substantial.
[13] In Nawalu v State [2013] FJSC 11; CAV0012.12 (28 August 2013) the Supreme Court said that for an incarcerated unrepresented appellant up to 03 months might persuade
a court to consider granting leave if other factors are in his or her favour and observed.
‘In Julien Miller v The State A6/07 (23rd October 2007) B07) Byrne J considered 3 months in a criminal matter a delay period
which could be considered reale toify the court granting leave.’
[14] However, I also wish to reiterate thte the come comments of Byrne J, in Julien Miller v The State AAU0076/07 (23 Oc 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
would be in a state of chaos. The law expects litigants and would-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] The appellant’s excuse for the delay is that he was anticipating that his trial counsel would file his appeal but later with the assistance of his prison inmates he filed appeal papers belatedly. The appellant had been defended by two lawyers at the trial and with due diligence the appellant could have got at least one of them to file a timely appeal. If not, he himself could have appealed within time as he eventually did. Therefore, his explanation for the delay is not acceptable.
Merits of the appeal
[16] In State v Ramesh Patel (Aof 2002: 15 November 2002 2002) this Court, when the delay was some 26 months, stated (quoted in Waqa v State [2013] FJCA 2; AAU11 (18 January 2013) that delay alone will not decide the matter of extension of time and tand the court would 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."
[17] 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 delay and the absence of a convincing explanation, the prospects of his appeal would warrant granting enlargement of time.
[18] 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; ( 55 CLR 499, Kim Nam Bae v The State> Criminal Appeal No.AAU0015 and Chirk King Yam v The State Criminal Appeal No.AAU0f 20of 2011). The test for leave to appeal is not whether the sentence is wrong in law but er the grounds
of appeal against sentence are arguable poin points under the four principles of
( (i) Acted upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.
[19> [19] Grounds of appeal urged on behalf of the appellant are as follows.
Conviction
Sentence
01st ground of appeal
[20] The appellant complains inadequacy of alibi direction in that the trial judge had not directed the assessors that it is for the prosecution to disprove the alibi.
[21] 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
[22] In Bese v State [2013] FJCA 7U0067 (10 2013) Gounder J held
‘[12];[12] When an accused raises alibi as his his defendefence, in addition to the general direction on the burden of proof, the jury 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 3A; R 60;R v Baillie [1995] 2 Cr 31; R v LR v Lesley [1996] 1 CrR 39; R v HR v Harron [1996r 2 C7)......’
[23] Having summarized the evidence relating to the appe appellant’s alibi at paragraphs 37-44 rial ̵irections onns on the alibi are found in paragraragraphs aphs 61-65 of the summing-up.
[24] It is true that the trial judge had not directed the assessors that that the prosecution must disprove the alibi but he had stated everything else that needs to be said on an alibi defense.
[25] The appellant’s counsel should have sought redirections in respect of this simple omission in the summing-up as held in Tuwai v State [2016] FJSC35 (26 August 2016) and Alfaaz v State [2018] FJCA19; AAU0030 of 2014 (08 March 2018) and Alfaaz v State [2018] FJSC 17; CAV 0009 of 2018 (30 August 2018) rather than waiting to take it up as an appeal ground. The failure to do so would disentitle the appellant even to raise it in appeal with any credibility.
[26] However, the trial judge seems to have made up for that lapse by analyzing the defense of alibi at paragraphs 06-11 at length in his judgment and concluded that he did not accept it to be true and credible. This conclusion necessarily means that according to the judge the prosecution had disproved the alibi. I remarked in Waininima v State [2020] FJCA 159; AAU0142.2017 (10 September 2020).
[21] .................the position of the trial judge at a trial with assessors i.e. in Fiji, the assessors are not the sole judges of facts. The judge is the sole judge of facts in respect of guilt, and the assessors are there only to offer their opinions, based on their views of the facts and it is the judge who ultimately decides whether the accused is guilty or not (vide Rokonabete v Stat&<[2006] FJCA 85; AAU0048.2(22 M2006), Noa Maya v. The State [2015] FJSC 30; CAV 009 of 2015 (23 October 2015] a>Rokopeta v State [2016] FJSC 33; CAV0009, 0016, 0018, 0019.2016 (26 August 2016). /p>
[27] I think thnk the correct approach that should be taken by the appellate court in dean dealing with this kind of complaint regarding an omission in the summing-up is the same as that is adopted upon an allegation of a non-direction which is to see whether the non-direction or omission had resulted in a miscarriage of justice and if so, whether it is a substantial miscarriage of justice.
[28] The proper test for the appellate court is laid down in Aziz v State [2015] FJCA >; AAU112.2011 (13 July 2015)
‘[55] The approach that should be followollowed in deciding whether to apply the proviso to section 23b>((1) of the Court of Appeal Act was explained by ourt of Apof Appeal in;R v. Haddy ;[1944]1944] 1 KB 442. The decision is authority for the proposition that if the Court of Appeal is satisfied that on the whole of the facts and with a correct direction the only reasonable and proper verdict would be one of guilty there is no substantial miscarriage of justice. This decision was based on section 4(1) of the Criminal Appeal Act 1907 (UK) which was in the same terms as section 23(1) of the Court of Appeal Act.
i>[56] This test has been adopted and applied by the Court ourt of Appeal in Fiji in R –vswani PillaPillai unreportedinal appeal peal peal No. 11 of 1952; 25 August 1952); R &;v- Labalaba (1946 1; 1955) 4 F and&<&Pillay –v- R (1981) 27 FLR 202. In #160;Pillay &;v211;v-11;v- R (supra) ourt cored taning oing of the expr expression "no substantial miiaarriageriage of justice" and ad the observations of s of North J in 211;vr [1955] NZLR 711 at page /i> ><
<
"The meaning to be attributed to the words 'no substantial miscarriage of justice has occurred' is not in doubt. If the Court coo the cone conclusion that,he whole of the facts, a re a reasonable jury, after being properly directed, would without doubt have convicted, then no substantialarriage of justice within the meaning of the proviso has ocas occurred."
[57] This will be so notwithstanding that the finding of guilt may have been due in some extent to the faulty direction given by the judge. In other words the misdirection may give rise to the conclusion that there has been a miscarriage of justice (ground 4 in section 23(1)) by virtue of the faulty direction but when considering whether to apply the proviso the appeal may be dismissed if the Court considers that there was no substantial miscarriage of justice.
In
"The application of the oviso to section 60;<60;
[29] The prosecution depended on the evidence of the complainant, two recent comt complaint witnesses and medical opinion that the assessors and the trial judge had believed.
[30] With regard to the trial judge’s omission to direct the assessors and himself that it is for the prosecution to disprove the alibi defense, though it may have caused a miscarriage of justice it certainly had not caused a substantial miscarriage of justice within the meaning of the proviso to section 23(1), as on the whole of the facts, reasonable assessors, after being fully directed on alibi, would without doubt have convicted the appellant or put another way this court can be satisfied that on the whole of the facts and with a complete direction the only reasonable and proper verdict would have been one of guilty.
[31] Therefore, there is no real prospect of success of the first ground of appeal.
02rd ground of appeal (sentence)
[32] The appellant’s complaint is that the trial judge had erred in double counting having considered aggravating factors that are reflected already in selecting a starting point.
[33] The trial judge had carried out the process of sentencing in the following manner and picked the starting point at 12 years applying
sentencing tariff set down in Raj v State [2014] FJSC 12; CA.2014 (20 August 2014) for juvenile rape i.e. [34] Thereafter, the trial judge had increased the sentence by 03 years for aggravating factors as follows. ‘11. You have blatantly breached the trust reposed in you by the Complainant as her step-father. The age difference between
you and the Complainant was substantially high at the time of this crime took place. By committing this crime, you have denied the
Complainant, her natural growth in life. I consider these factors as aggravating circumstances of this crime. 14. In view of the above discussed aggravating circumstances, I increased three (3) years to reach interim imprisonment of fifteen
(15) years for each of the four counts of rape and five (5) years for the Sexual Assault. I reduce one (1) year for your previous
good character. Your final sentence for each of the four counts of Rape has now reached to fourteen (14) years of imprisonment. The
final sentence for the sexual assault has reached to four (4) years of imprisonment. [35] It cannot be said that aggravating factors had been counted twice in the matter of sentence. It is clear that features relating
to objective seriousness of the offences had gone into the judge having picked the starting point at 12 years and they are not essentially
part of aggravating factors. [36] It is true that in Senilolokula v State [2018] FJSC 5; CAV0017.2017 (26 April 2018) the Supreme Court has raised a few concerns regarding selecting the ‘starting point’ in
the two-tiered approach to sentencing in the face of criticisms of ‘double counting’ and question the appropriateness
in identifying the exact amount by which the sentence is increased for each of the aggravating factors stating that it is too mechanistic
an approach. Sentencing is an art, not a science, and doing it in that way the judge risks losing sight of the wood for the trees. [37] The Supreme Court said in Kumar v State [2018] FJSC 30; CAV0017.2018 (2 November 2018) that if judges take as their starting point somewhere within the range, they will have factored into the exercise at least some of the aggravating features of the case. The ultimate sentence will then have reflected any other&aggravagravating features of the case as well as the mitigating features. On the other hand, if judges take as their starting point the lower end of the , they will not have factored into the exercise anyi>any&of the aggr aggravating factors, and they will then have to factor into the exercise all the aggravating features of the case as well as the mitigating features. [38e judges following KoKoroivuki v State [2013] FJCA 15; AAU0018 of 2010 (05 March 2013) pick the starting point from the lower or middle range of the tariff whereas other judges start
with the lower end of the sentencing range as the starting point. [39] This concern on double counting was echoed once again by the Supreme Court in Nadan v State [2019] FJSC 29; CAV0007.2019 (31 October 2019) and stated that the difficulty is that the appellate courts do not know whether all or any of the
aggravating factors had already been taken into account when the trial judge selected as his starting point a term towards the middle
of the tariff. If the judge did, he would have fallen into the trap of double-counting. [40] I previously had the opportunity of examining a similar complaint in Salayavi v State [2020] FJCA 120; AAU0038 of 2017 (03 August 2020) where I stated: ‘[30] In the present case, however, it is clear what features the learned trial judge had considered in selecting the starting
point. Therefore, it becomes clear that there had been double counting when the same or similar factors were counted as aggravating
features to enhance the sentence. Like in this case, if the trial judges state what factors they have taken into account in selecting
the starting point the problem anticipated in Nadan may not arise. Therefore, in view of the pronouncements of the Supreme Court in Nadan it will be a good practice, if not a requirement, in the future for the trial judges to set out the factors they have taken into
account, if the starting point is fixed ‘somewhere in the middle of the range’ of the tariff. This would help prevent
double counting in the sentencing process. In doing so, the guidelines in Naikelekelevesi and Koroivuki may provide useful tools to navigate the process of sentencing thereafter.’ [41] The trial judge had indicated what factors he had considered in selecting the starting point and then set out the aggravating
factors he had used to enhance the sentence. Thus, there is no double counting. [42] In any event, it is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it.
When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must
be considered (vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon
the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the
case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies
within the permissible range (Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015). [43] The ultimate sentence of 13 years and 07 months imposed on the appellant is well within the sentencing tariff and not disproportionate
to the gravity of the crimes committed by the appellant. [44] Therefore, the appellant has failed to demonstrate a sentencing error having a real prospect of success under the sole ground
of appeal against the sentence to deserve enlargement of time to appeal against sentence. Prejudice to the respondent [41] Though an extension of time would not prejudice the respondent directly, any fresh proceedings would cause a great deal of inconvenience
to the complainant. Order Hon. Mr. Justice C. Prematilaka JUSTICE OF APPEAL
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