Court of Appeal of Fiji

SEXUASEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

RAVINDRAN MANI on the 1st of August, 2016 at Lautoka in the Western Division, unlawfully and indecently assaulted AS.

COUNT 3
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Decree 44 of 2009.

Particulars of Offence

RAVINDRAN MANI on theof August, 2016 at Laat Lautoka in the Western Division, penetrated the anus of AS a 12 year old girl, with his penis.

[3] The facts of the case had been summarized by the trial judge in the sentencing order as follows.

5. Prosecution called four witnesses, the victim, two of her classmates and her teacher. Prosecution’s case is substantially based on the evidence of the child victim. Other witnesses were called to prove the consistency of the conduct of the victim.
   
6. Accused gave evidence in his defence. Defence’s case is one of denial. Accused denies committing any of the sexual offences mentioned in the information.
   
7. Prosecution heavily relies on recent complaint evidence to prove the consistency of the conduct of the victim. The victim had promptly complained to two of her friends in school after the alleged incident and then to the teacher two days thereafter. She was crying and in a distressed condition when she reported the matter to her friends and teacher. The victim was 12 years old student at the time of the offence. She had no apparent motive to make up an allegation against the accused who is her biological father.

[4] The respondent had been acquitted of count 01 of indecent assault for lack of evidence at the end of the prosecution case. Upon conclusion of the summing-up on 30 August 2018 the assessors had unanimously opined that the appellant was guilty of count 02 i.e. sexual assault and not guilty of count 3 i.e. rape. The learned trial judge had agreed with the unanimous opinion of the assessors on both counts in his judgment delivered on 05 September 2018, convicted the respondent of count 02 and acquitted him of count 03. He was sentenced to 05 years and 11 months of imprisonment on the second count with a non-parole period of 04 years.

[5] The state had filed a timely notice of appeal on 03 October 2018 against the acquittal of the appellant on count 03. The appellant’s written submissions had been tendered on 24 August 2020. The respondent had tendered its written submissions on 14 October 2020.

[6] In terms of section 21(2)(b) of the Court of Appeal Act, the state could appeal against conviction only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (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 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.

[7] Grounds of appeal urged on behalf of the appellant are as follows.

‘Conviction

Ground 1 – The learned trial Judge erred in law by failing to direct the assessors on a lesser charge of the offence of attempt to commit rape which was available as per the evidence.

01^st ground of appeal

[8] The state argues that the trial judge was wrong to have acquitted the respondent of rape charge and also that he should have considered section 162 of the Criminal Procedure Act, 2009 and directed the assessors as per the evidence available on attempted rape.

[9] On the perusal of the summing-up, I find that the trial judge had summarized the evidence for the prosecution at paragraphs 36-52. The evidence relating to the charge of anal rape is found at paragraph 39 which is as follows.

‘39. Then he took her back to his room, holding her hand forcefully. Whilst in his bedroom, she put the blanket on her. While she was still crying, he made her lie down on his bed and then he took out the blanket and started kissing her lips, breast and vagina. Then he, while sitting on his knees, made her lie down on her stomach and put his sperm on her back side. It was little bit sore. She described ‘sperm’ as his private part. She described her back side as her ‘bum’. She said that he put his private part inside her bum. She felt weird. She didn’t like it. She told him not to do it but he kept on doing it.’

[10] The evidence of PW2, PW3 and PW4 had not testified to the victim having revealed an act of rape or attempted rape to any one of them. The prosecution had not led any medical evidence but had submitted in written submissions that the medical report had not revealed any injuries on the anus or hymen. The respondent had denied the allegations altogether in his evidence and stated further that he could not get a penile erection due to a medical condition.

[11] No criticism could be leveled against the summing-up by the trial judge as far as the prosecution case was concerned and the assessors thereafter on the evidence available had decided that the respondent was not guilty of rape. The state argues that the trial judge should have directed the assessors on attempted rape and appears to rely on section 162 (1)(f) of the Criminal Procedure Code to support that position. The respondent argues that section 162 does not compel a trial judge to direct the assessors on a lesser offence but it only empowers the judge to convict the accused for a lesser offence upon being satisfied on the evidence adduced.

[12] Section 162 gives a discretion to trial court to record a conviction for a lesser or alternative offence in any one of the situations given under 162(1)(a) to (i) when it is satisfied that the evidence adduced in the trial supports such a conviction when the accused is charged with an offence. Technically, the section is silent on any duty on the part of the trial judge to direct the assessors on such lesser or alternative offence.

[13] However, in State v Rainima [1994] FJCA 28; AAU0002u.1994s (12 August 1994) where there had been unequivocal evidence in the form of a confessional statement coupled with the accused’s own sworn testimony that he wanted to have sexual intercourse but could not do so and the trial judge had failed to direct the assessors on attempted rape, the Court of Appeal held

‘We have no hesitation in holding that in the light of the unequivocal evidence before the Court, the learned trial judge erred in law in not directing the Assessors that there was ample evidence before them based on the Respondent's own admission to constitute the offence of attempted rape even though the Respondent was not charged with attempt. His failure to put the issue of attempt to the Assessors has, in our view, resulted in a miscarriage of justice. Had he done so we have no doubts in our mind that the Assessors would have advised him that the Respondent was guilty of attempted rape.

In an assessor system such as ours the trial judge is the final arbiter of the innocence or guilt of the accused. He is not bound to accept the opinions of the Assessors willy-nilly although where guilt or innocence is dependent purely on credibility and on questions of fact he would rarely reject their opinion. Where he does so he would be expected to give cogent reasons for differing from the Assessors.

We, therefore, allow the appeal, set aside the order of acquittal and direct a judgment and verdict of conviction of the Respondent of attempt to commit rape contrary to Section 151 of the Penal Code to be entered, asorised by d by Section 170 of the Criminal Procedure Cure Code and Section 23(2)(b) of the Court of Appeal Act (Amendment) Decree, 1990.