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

CRIMINAL APPEAL NO.AAU 0057 of 2019
[In the High Court at Suva Case No. HAC 199 of 2016]

BETWEEN		: 	AMENATAVE KOROISAU  
			
											Appellant
AND			:	STATE 
Respondent

Coram			: 	Prematilaka, JA

Counsel		:	Ms. S. Nasedra for the Appellant
		:	Mr. M. Vosawale for the Respondent

Date of Hearing	: 	11 February 2021 

Date of Ruling 	: 	12 February 2021

RULING 

[1]	The appellant had been indicted in the High Court of Suva on three counts of rape contrary to section 207(1) and (2) (b), (2) (c) and (3) of the Crimes Act, 2009 and one count of sexual assault contrary to section 210 (1) (a) of the Crimes Act, 2009 committed at Beqa Island, in the Central Division. The victim was 10 years old and the appellant, aged 36 was an older cousin of her 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
AK on the 23rd of December 2015, at Beqa Island, in the Central Division, penetrated the vagina of LWN, a child under the age of 13 years, with his tongue.
COUNT TWO
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (c) and (3) of the Crimes Act 2009.
Particulars of Offence
AK on the 24th of December 2015, at Beqa Island, in the Central Division, penetrated the mouth of LWN, a child under the age of 13 years, with his penis.
COUNT THREE
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act 2009.
Particulars of Offence
AK on the 24th of December 2015, at Beqa Island, in the Central Division, penetrated the vagina of LWN, a child under the age of 13 years, with his tongue.
COUNT FOUR
Statement of Offence
SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act 2009.

Particulars of Offence
AK on the 24th of December 2015, at Beqa Island, in the Central Division, unlawfully and indecently assaulted LWN, by fondling and sucking the breasts of the said LWN.

[3] 	The following could be gathered from the sentencing order regarding the convictions.

[4]	It was proved during the trial that, on 23 December 2015, at Beqa Island, you penetrated the vagina of LWN, a child under the age of 13 years, with your tongue.
[5] It was also proved during the trial that, on 24 December 2015, at Beqa Island, you penetrated the mouth of LWN, a child under the age of 13 years, with your penis.
[6] It was further proved during the trial that, on 24 December 2015, at Beqa Island, you penetrated the vagina of LWN, a child under the age of 13 years, with your tongue.
[7] And finally it was proved that, on 24 December 2015, at Beqa Island, you unlawfully and indecently assaulted LWN by fondling and sucking her breasts.
[8] You are an older cousin of the complainant. The complainant was only 10 years of age, at the time you committed the above offences on her (her date of birth being 23 December 2005), and as such, she was a juvenile.
[9] The complainant clearly testified that on 23 December 2015, you penetrated her vagina with your tongue.
[10] The complainant further testified that on 24 December 2015, you penetrated her vagina with your tongue; you unlawfully and indecently assaulted her by sucking her breasts; and that you penetrated her mouth with your penis.’

[4]	At the conclusion of the summing-up on 24 July 2018 the assessors had unanimously opined that the appellant was guilty of the first count but by a majority the assessors had found the appellant not guilty of the rest of the charges. The learned trial judge had agreed with the assessors on count 01 but disagreed with them on count 02, 03 and 04 in his judgment delivered on 25 July 2018, convicted the appellant on all four counts and on 31 July 2018 imposed on him a sentence of 12 years each on three counts of rape and on the remaining count of sexual assault a sentence of 04 years of imprisonment; all sentences to run concurrently. After deducting the remand period the ultimate sentence was 11 years, 09 months and 20 days with a non-parole period of 09 years, 09 months and 20 days.

[5]	The appellant’s untimely application for leave to appeal against conviction and sentence containing submissions had been filed in person on 16 April 2019. He had filed an abandonment notice regarding his sentence appeal on 26 August 2020. The Legal Aid Commission had tendered a notice of motion dated 15 October 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 24 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 Rasaku v State CAV0009, 0013 of 2009: 24 April 2013 [2013] FJSC 4, Kumar v State; Sinu v State CAV0001 of 2009: 21 August 2012 [2012] FJSC 17.
 
[7]	In Kumar the Supreme Court held

	‘[4] Appellate courts examine five factors by way of a principled approach to such applications. Those factors are:
	(i) The reason for the failure to file within time.
(ii) The length of the delay.
(iii) Whether there is a ground of merit justifying the appellate court's consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?

[8]	Rasaku the Supreme Court further held

	‘These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application for enlargement of time. Ultimately, it is for the court to uphold its own rules, while always endeavouring to avoid or redress any grave injustice that might result from the strict application of the rules of court.’

[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, the threshold for enlargement of time should logically be higher than that of leave to appeal and in order to obtain enlargement or extension of time the appellant must satisfy this court that his appeal not only has ‘merits’ and would probably succeed but also has a ‘real prospect of success’ (see R v Miller [2002] QCA 56 (1 March 2002) on any of the grounds of appeal……’

Length of delay

[12]	The delay is about 07 months and 02 weeks 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 AAU0076/07 (23rd October 2007) Byrne J considered 3 months in a criminal matter a delay period which could be considered reasonable to justify the court granting leave.’
[14]	However, I also wish to reiterate the comments of Byrne J, in Julien Miller v The State AAU0076/07 (23 October 2007) 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.’

Reasons for the delay 

[15]	The appellant’s excuse for the delay is that he did not understand the appeal process and drafting of his appeal grounds especially without trial papers. Then, with the help with fellow inmates he managed to file his appeal out of time. 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. He does not appear to have contacted any one of them to appeal his conviction and sentence in time.  Even otherwise there is no explanation why he waited for more than 07 months to appeal in person or get the assistance of the Legal Aid Commission. Therefore, his explanation for the delay is not convincing.  

Merits of the appeal 

[16]	In State v Ramesh Patel (AAU 2 of 2002: 15 November 2002) this Court, when the delay was some 26 months, stated (quoted in Waqa v State [2013] FJCA 2; AAU62.2011 (18 January 2013) that delay alone will not decide the matter of extension of time and 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]	Grounds of appeal urged on behalf of the appellant are as follows.

			Conviction 
1.	That the learned trial judge erred in law and in fact when he convicted the appellant with evidence adduced not being able to support the conviction.  

	01st ground of appeal 

[19]	The appellant submits that he trial judge’s reasoning to convict the appellant is unfounded where he had criticized the defense case rather than focusing his attention to the inconsistencies of the prosecution case which raised many material and reasonable doubts. Unfortunately this ground of appeal had not been elaborated by the appellant’s written submissions. 

[20]	My remarks in Waininima v State [2020] FJCA 159; AAU0142.2017 (10 September 2020) on the duty of the trial judge when he agrees or disagrees with the assessors are relevant here as the trial judge had agreed with the assessors on count 01 and disagreed with the majority of assessors on the rest of the counts in convicting the appellant on all counts. 

	‘[17]	Therefore, there still appears to be some gray areas flowing from the above judicial pronouncements as to what exactly the trial judge’s scope of duty is when he agrees as well as disagrees with the majority of assessors.  
[18]	What could be ascertained as common ground is that when the trial judge agrees with the majority of assessors, the law does not require the judge to spell out his reasons for agreeing with the assessors in his judgment but it is advisable for the trial judge to always follow the sound and best practice of briefly setting out evidence and reasons for his agreement with the assessors in a concise judgment as it would be of great assistance to the appellate courts to understand that the trial judge had given his mind to the fact that the verdict of court was supported by the evidence and was not perverse so that a judge’s agreement with the assessors’ opinion is not viewed as a mere rubber stamp of the latter. 
[19]	On the other hand when the trial judge disagrees with the majority of assessors the trial judge 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. 
[20]	In my view, in both situations, a judgment of a trial judge cannot not be considered in isolation without necessarily looking at the summing-up, for in terms of section 237(5) of the Criminal Procedure Act, 2009 the summing-up and the decision of the court made in writing under section 237(3), should collectively be referred to as the judgment of court. A trial judge therefore, is not expected to repeat everything he had stated in the summing-up in his written decision (which alone is rather unhelpfully referred to as the judgment in common use) even when he disagrees with the majority of assessors as long as he had directed himself on the lines of his summing-up to the assessors, for it could reasonable be assumed that in the summing-up there is almost always some degree of assessment and evaluation of evidence by the trial judge or some assistance in that regard to the assessors by the trial judge.  
[21]	This stance is consistent with the position of the trial judge at a trial with assessors i.e. in Fiji, the assessors are not the sole judge of facts. 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 [2006] FJCA 85; AAU0048.2005S (22 March 2006), Noa Maya v. The State [2015] FJSC 30; CAV 009 of 2015 (23 October 2015] and Rokopeta v State [2016] FJSC 33; CAV0009, 0016, 0018, 0019.2016 (26 August 2016). 
[21]	The evidence as summarized by the High Court judge shows that the child victim has given clear evidence on the incidents on 23 and 24 December 2015 while she was spending Christmas holidays at Soliyaga Village in Beqa Island. On 23 December 2015 the appellant who was known to her had called her into the bush and kissed her mouth and licked her vagina around 1.00 to 2.00 p.m. On 24 December 2015 in the same bush he had kissed her mouth, licked her vagina, sucked her breasts and put his tongue inside her vagina. Thereafter, the appellant had taken his penis out and forcefully put it inside her mouth and after a while some white substance had come out of his penis. After coming home (Nadi) the victim had written what the appellant had done to her on a piece of paper and put it under her mattress.

[22]	Arieta Naikabisa, the victim’s aunt on 04 March 2016 had found those letters under the victim’s mattress and confronted her as to whether she had written them. The victim had started crying and disclosed to Arieta what the appellant had done to her. The matter had been reported to the police later on the same day.

[23]	The medical examination on 05 March 2016 had produced inconclusive results but  the doctor had not ruled out penetration of the victim’s vagina 02-03 months back by tongue despite lack of any visible injury. 

[24]	The appellant had made a confessional statement upon being cautioned interviewed by the police. 

[25]	The appellant under oath had simply denied having called the victim into the bush on 23 December 2015 and taken up an alibi regarding 24 December 2015 where he had stated that he went with Maikeli, his sister’s son (nephew) to the latter’s plantation around 8.00 a.m. and remained there till 4.30 p.m. and returned to the village around 6.00 p.m. 

[26]	Maikeli had testified supporting the appellant’s alibi evidence stating inter alia that the appellant was with him the whole day on 24 December 2015 at the plantation. 

[27]	The fact that the assessors had opined that the appellant was guilty of rape on 23 December 2015 shows that they had believed and accepted the victim’s evidence in toto in conjunction with the rest of the prosecution evidence. The trial judge in his judgment had correctly agreed with the assessors on count 01. 

[28]	The only reason why the majority of assessors had opined that the appellant was not guilty of two acts of rape and one act of sexual assault on 24 December 2015 could be reasonably assumed to be the alibi evidence of the appellant as opposed to his simple denial on the previous day’s incident. This was the view of the High Court judge also had taken according to paragraph 30 of the judgment. 

[29]	The trial judge had then independently analyzed and evaluated the alibi evidence at paragraph 31– 40 and concluded that the assessors’ opinion on counts 2-4 relating to the incidents that had happened on 24 December 2015 as perverse, disagreed with the assessors and found the appellant guilty of  counts 2-4 as well. He had agreed with the assessors on count 01. The trial judge had duly discharged his duty in agreeing and disagreeing with assessors. 
 [30]	Having examined the summing-up and the judgment, I concur with the trial judge. There was no plausible reason for the assessors to have rejected the evidence of the victim on the acts of sexual abuse on 24 December 2015 after accepting her evidence in respect of the single act of rape on 23 December 2015 and the other prosecution in general even in the face of alibi evidence which the trial judge had correctly considered as not truthful and reliable.  

[31]	Having considered the admissible evidence against the appellant as a whole, I could not say that the conviction on all counts was unreasonable and there was admissible evidence on which the conviction could be based [vide Sahib v State [1992] FJCA 24; AAU0018u.87s (27 November 1992), Rayawa v State [2020] FJCA 211; AAU0021.2018 (3 November 2020) and Turagaloaloa v State [2020] FJCA 212; AAU0027.2018 (3 November 2020)]. 

[32]	The trial judge also could have reasonably convicted the appellant on the admissible evidence before him on all counts (vide Kaiyum v State [2013] FJCA 146; AAU71 of 2012 (14 March 2013) and Singh v State [2020] FJCA 1; CAV0027 of 2018 (27 February 2020)].

[33]	Therefore, there is no real prospect of success on the ground of appeal.
 
	Prejudice to the respondent

[34]	Though an extension of time would not prejudice the respondent directly, any fresh proceedings would cause a great deal of inconvenience to the victim. 

Order 

1.	Enlargement of time to appeal against conviction is refused.

						
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL