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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 0049 of 2020
[In the High Court at Suva Case No. HAC 325 of 2018S]
BETWEEN:
SOVITA TURAGABECI RAWALAI
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, ARJA
Counsel: Appellant in person
: Mr. M. Vosawale for the Respondent
Date of Hearing: 21 December 2021
Date of Ruling: 22 December 2021
RULING
[1] The appellant had been indicted in the High Court at Lautoka on one representative count of rape contrary to section 207 (1) and (2) (a) of the Crimes Act, 2009 committed on the 04 August 2018 at Raralevu, Vuci Road in the Eastern Division.
[2] The information read as follows.
‘Statement of Offence
RAPE: Contrary to section 207and and (2) (a) of Crimes Act 2009.
Particulars of Offence
SOVITA TURAGABECI RAWALAI , on the 4
[3] At the end of the sumup, tjoritassessors hars had opid opined that the appellant was guilty as y as charged. The learned trial judge had agreed with the assessors’ opinion, convicted the appellant and sentenced him on 23 March 2020 to a sentence of 10 years imprisonment without a non-parole period.
[4] The appellant had appealed against conviction and sentence in person out of time (14 July 2020) but within 03 months of the expiry of the appealable period. Therefore, the respondent raised no objection to treat it as a timely appeal. The appellant had filed amended grounds of appeal and submissions from time to time and he indicated to this court on 19 March 2021 that he would rely only on amended grounds of appeal against conviction and submissions filed on 23 February 2021 for the main appeal and bail pending appeal application. The state had tendered its written submissions on 22 November 2021.
[5] In terms of section 21(1)(b) and (c) of the Court of Appeal Act, the appellant could appeal against conviction and sentence only with leave of court. The test in a timely appeal for leave to appeal against conviction and sentence 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 grounds of appeal urged on behalf of the appellant against conviction are as follows.
Ground 1
THAT the Learned High Court Judge erred in facts and in law in his summing up at paragraph 18 whereas he directed the assessors may the appellant quote: “when a prima facie case was found against him at the end of the prosecution’s case wherein he was called upon to make his defence, he chose to give sworn evidence and call no witness.
Ground 2
THAT his Lordship had satisfied, the State case rested solely on the verbal evidence of the woman. His Lordship should have noted that the statement of a police sergeant has no greater probative value than the statement of an ordinary person.
Ground 3
THAT the appellant had a good defence from the statement of an independent witness Jovilisi Balemaivalagai whose statement recorded by Cpl 2997 Susana Yaca of Nausori Police Station on 6/8/2018.
Ground 4
THAT his Lordship when summing up to the assessors on the elements of Rape had omitted the definition of Rape in law: “having sexual intercourse without consent by force”.
Ground 5
THAT the evidence of the forensic does not help the case for the State it is only confirmation that sexual intercourse had really taken place and have not record of force or mental state of the woman that she could not give proper statement as she claimed.
[7] The trial judge had summarized the prosecution evidence in the sentencing order as follows.
[8] The appellant had given evidence and taken up the position that sexual intercourse with the complainant was consensual.
01st ground of appeal
[9] The gist of the 01st ground of appeal is that the trial judge by addressing the assessors as follows had deprived the appellant of a fair trial, the focus being on the phrase ‘..When a prima facie case was found against him, at the end of the prosecution’s case..’
18. On 16 March 2020, the information was put to the accused, in the presence of his counsels. He pleaded not guilty to the charge. In other words, he denied the rape allegation against him. When a prima facie case was found against him, at the end of the prosecution’s case, wherein he was called upon to make his defence, he chose to give sworn evidence and called no witness. That was his constitutional right.
[10] This court had dealt with similar complaints many a time before. It has been held that although the learned judge had made a
general reference as to the existence of a
[11] Therefore, there is no reasonable prospect of success in this ground of appeal.
02nd and 03rd ground of appeal
[12] The appellant complains that Jovilisi Balemaivalagi and Sikeli Vonotabei had given statements favorable to him to the police in so far as consensual sex was concerned and in the light of their statements, the trial judge should not have accepted the complainant’s evidence.
[13] The two persons referred to by the appellant were not called as witnesses either by the prosecution or by the appellant who was defended by two counsel at the trial and therefore, the trial judge was not entitled to refer to or rely on any police statements given by them as there was no evidence from the said two persons before the assessors and the trial judge.
[14] Therefore, there is no reasonable prospect of success in this ground of appeal.
04th ground of appeal
[15] The appellant submits that the trial judge had, when summing up to the assessors on the elements of rape, omitted the definition of rape in law i.e. ‘having sexual intercourse without consent by force’.
[16] This contention has no merit, for from paragraphs 09-13 the trial judge had clearly described the elements of rape including penetration of the vagina without the complainant’s consent.
[17] Therefore, there is no reasonable prospect of success in this ground of appeal.
05th ground of appeal
[18] The appellant argues that medical evidence had not revealed an act of sexual intercourse or any other evidence of lack of consent.
[19] The fact of sexual intercourse was common ground and there was no dispute over that. There was no need for medical evidence to prove sexual intercourse. Secondly, medical evidence did reveal bruises and abrasions to the complainant’s neck consistent with the complainant’s evidence that the appellant strangled her throat with his right hand. There is no merit in the appellant’s contention.
[20] Therefore, there is no reasonable prospect of success in this ground of appeal.
Sentence appeal
[21] Although the appellant had not pursued his sentence appeal, his initial appeal refers to the sentence as well. He has not filed an application in Form 3 to abandon his sentence appeal either. Therefore, I shall rule on the sentence appeal as well.
[22] 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 Kin [1936] HCA 40;
[25] Out of the three factors listed under section 17(3) of the Bail Act ‘likelihood of success’ would be considered first and if the appeal has a ‘very high likelihood of success’, then the other two matters in section 17(3) need to be considered, for otherwise they have no direct relevance, practical purpose or result.
[26] If the appellant cannot reach the higher standard of ‘very high likelihood of success’ for bail pending appeal, the court need not go onto consider the other two factors under section 17(3). However, the court may still see whether the appellant has shown other exceptional circumstances to warrant bail pending appeal independent of the requirement of ‘very high likelihood of success’.
[27] The appellant has not satisfied this court that he has a reasonable prospect of success with any of his grounds of appeal and therefore, he cannot reach the standard of ‘very high likelihood of success’.
[28] Therefore, there is no need to consider the second and third limbs of section 17(3) of the Bail Act namely ‘(b) the likely time before the appeal hearing and (c) the proportion of the original sentence which will have been served by the appellants when the appeal is heard’ together.
[29] In the circumstances, the appellant’s bail pending appeal application must fail.
Orders
Hon. Mr. Justice C. Prematilaka
ACTING RESIDENT JUSTICE OF APPEAL
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URL: http://www.paclii.org/fj/cases/FJCA/2021/252.html