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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 0002 of 2019
[In the High Court at Lautoka Case No. HAC 60 of 2015]
BETWEEN:
MAIKELI SAUKURU
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, ARJA
Counsel: Ms. S. Ratu for the Appellant
: Mr. L. J. Burney for the Respondent
Date of Hearing: 24 September 2021
Date of Ruling: 01 October 2021
RULING
[1] The appellant (02nd accused) had been indicted with another (01st accused and the appellant in AAU08 of 2019) in the High Court at Lautoka with one count of rape contrary to section 207 (1) and (2) (a) of the Crimes Act, 2009 committed at Nadi in the Western Division on 03 April 2015.
[2] The information read as follows:
‘FIRST COUNT
Statement of Offence
RAPE: Contrary to section 207(1) and 2 (a) of the Crimes Act, 2009.
Particulars of Offence
INIA NAQIA on the 3
SECOUNT/i>
Statement of Offence
RAPE<: Contrary to section 207(1) and 2 ( the Crimes Act, 2009.<
Particulars of Offence
MAIKELI SAUKURU the 3rd/sup> day of , 2015 at Nadi in thin the Western Division penetrated the vagina of ANI TINAI,>with his penis, without the consent of the said ANI TINAI.’
>
[3] At the end of the summing-up the aors had unanimously opined that the appellant was not guilty as charged. The learned trial rial judge had disagreed with the assessor17; opinion, convicted the the appellant and sentenced him on 12 December 2018 to an imprisonment of 08 years and 10 months with a non-parole period of 08 years.
[4] The appellant had appealed in person against conviction and sentence in a timely manner. Subsequently, he had tendered amended and additional grounds of appeal from time to time. Thereafter, the Legal Aid Commission had filed amended notice of appeal against conviction along with written submission on 28 September 2020. The appellant had also filed an abandonment notice relating to his sentence appeal in Form 03 under Rule 39 on 28 September 2020. The state had tendered its written submissions on 28 October 2020. Counsel for both parties had consented to take a ruling on written submissions without an oral hearing via Skype.
[5] In terms of section 21(1)(b) of the Court of Appeal Act, the appellant could appeal against conviction only with leave of court. The test in a timely appeal for leave to appeal against conviction is ‘reasonable prospect of success’ [see Caucau v State [2018] FJCA 171; AAU0029 of 2016 (04 October 2018), Navuki v State [2018] FJCA 172; AAU0038 of 2016 (04 October 2018) and State v Vakarau [2018] FJCA 173; AAU0052 of 2017 (04 October 2018), Sadrugu v The State [2019] FJCA 87; AAU 0057 of 2015 (06 June 2019) and Waqasaqa v State [2019] FJCA 144; AAU83 of 2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 (15 July 2014) and Naisua v State [2013] FJSC 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds [see Nasila v State [2019] FJCA 84; AAU0004 of 2011 (06 June 2019)].
[6] The ground of appeal urged on behalf of the appellant against conviction is as follows:
‘Ground 1
THAT the Learned Trial Judge erred in law and in fact when he failed to adequately direct his mind on the compound improbabilities that emanated from the totality of evidence thus raising doubt on the evidence and prejudicing the Appellant on his right to a fair trial.
[7] The trial judge in the sentencing order had summarized the evidence against the appellant as follows:
‘2. The brief facts were as follows:
On 3rd April, 2015 thtim was drinkdrinking alcohol with both the accused persons in the early hours of the morning at the back of a dairy shop near Saunaka Village.
3. The drinking finished after 9am that morning. The victim went to the nearby sugar cane field to relieve herself where she blacked out. When she regained consciousness both the accused persons were holding her tight. They removed her clothes, the first accused Inia started to touch all over her body while the second accused forcefully started kissing her mouth, to stop him she bit his lips.
4. Both the accused persons took turns in having sexual intercourse with her by penetrating her vagina with their penis. The first accused had sexual intercourse first followed by the second accused. The victim did not give consent to any of the accused to have sexual intercourse with her.
5. After both the accused persons left the victim walked back to the village where she told her friend Solomoni Qurai what the two accused had done to her.
6. The matter was immediately reported to the police, upon investigations both the accused were arrested and charged.’
[8] The appellant had given evidence and denied having sex with the complainant and taken up the position that he left the scene around 6.30-7.00 a.m. Though he asked her to accompany him to the village she had refused and gone to join another group drinking nearby. The appellant had walked alone and came to know of the allegation in the afternoon.
01st ground of appeal
[9] This ground is based on what the counsel had proposed as ‘compounded probabilities’ in the prosecution case which the trial judge had allegedly failed to consider and which cast a reasonable doubt and therefore the verdict of guilty is unreasonable or cannot be supported having regard to the evidence. The improbabilities highlighted are ‘why did it take the complainant an incredible 1 ½ hours to reach Saunaka Village...’ and ‘how much truth is there regarding there being another group present after the Appellant left’.
[10] The trial judge had overturned the opinion of not guilty by the assessors which he had every right to do. The judge is the sole judge of fact 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 State<160; [2006] FJCA 85; AAU0048.2005S (22 March 2006), Noa Maya v. The State [2015] FJSC 30; CAV 009 of 2015 (23 October 2015] and RokopeState/b>b> [2016] FJSC 33; CAV0009, 00118, 0019.2016 (26 August 2016).
[11] When the trial judge disagrees with the mahe majority of assessors he should embark on an independent assessment and evaluation of the evidence and must give ‘cogent reasons’ founded on the weight of the evidence reflecting the judge’s views as to the credibility of witnesses for differing from the opinion of the assessors and the reasons must be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial [vide Lautabui v State [2009] FJSC 7; CAV0024.2008 (6 February 2009), Ram v State [2012] FJSC 12; CAV0001.2011 (9 May 2012), Chandra& v State [20JSC 3V21.2015.2015 (10 D(10 December 2015), Baleilevuka v State [2019] FJCA 209; AAU58.2015 (3 October 2019) and Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020) and Fraser v State [2021]; AAU 128.2014 (5 May 2021)].
Test of ‘unreasonable or cannot be supported having regard to the evidence’
[12] Trial by the judge assisted by assessors the test has been formulated as follows. Where the evidence of the complainant has been
assessed by the assessors to be credible and reliable but the appellant contends that the verdict is unreasonable or cannot be supported
having regard to the evidence the correct approach by the appellate court is to examine the record or the transcript to see whether
by reason of inconsistencies, discrepancies, omissions, improbabilities or other inadequacies of the complainant’s evidence
or in light of other evidence the appellate court can be satisfied that the assessors, acting rationally, ought nonetheless to have
entertained a reasonable doubt as to proof of guilt. To put it another way the question for an appellate court is whether upon the
whole of the evidence it was open to the assessors to be satisfied of guilt beyond reasonable doubt, which is to say whether the assessors must as distinct
from might, have entertained a reasonable doubt about the appellant's guilt. "Must have had a doubt" is another way of saying that it was "not reasonably open" to the jury to be satisfied beyond reasonable doubt of the commission of the offence. (see Kumar v State AAU 102 of 2015 (29 April 2021), Naduva v State AAU 0125 of 2015 (27 May 2021), Balak v State [2021]; AAU 132.2015 (03 June 2021), Pell v The Queen [20CA 12], Libke v R
[13] When the above test ialibrated to a situation where the trial judge disagrees wies with the assessors or the trail is by the judge alone it may be restated as ws. The question for an appn appellate court would be whether upon the whole of the evidence acting rationally it was open to the trial judge to be satisfied of guilt beyond reasonable doubt against the assessors’ opinion; whether the trial judge must, as distinct from might, have entertained a reasonable doubt about the accused’s guilt; whether it was ‘not reasonably open’ to the trial judge to be satisfied beyond reasonable doubt of the commission of the offence.
[14] Having directed himself with the lengthy summing-up the trial judge had embarked on an examination of the prosecution evidence from paragraphs 4-13 and defence evidence from paragraph 20-24. Then the trial judge had reflected the credibility of the prosecution and defence witnesses from paragraphs 25-34. Finally, the trial judge had stated:
[15] The trial judge had in fact addressed his mind to the two issues raised by the appellant as improbabilities and dismissed them for good reasons.
[16] Thus, the trial judge had satisfactorily discharged his burden in disagreeing with the assessors and convicting the appellant. Therefore, I do not see any reasonable prospect of success in this ground of appeal.
Order
Hon. Mr. Justice C. Prematilaka
ACTING RESIDENT JUSTICE OF APPEAL
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URL: http://www.paclii.org/fj/cases/FJCA/2021/153.html
