Semisi Tubuna v. The State

• Jurisdiction: Fiji
• Judge: Mr Justice Daniel Goundar
• Judgment Date: 28 February 2017
• Date: 28 February 2017
• Docket Number: CRIMINAL APPEAL NO. HAA24 of 2016 [Magistrates’ Court Case No.11 of 2010)
• Counsel: Ms S Vaniqi for the Appellant,Ms S Serukai for the Respondent
• Court: High Court (Fiji)

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA24 of 2016

[Magistrates’ Court Case No.11 of 2010)

Between:

Semisi Tubuna

Appellant

v.

The State

Respondent

Coram:

Hon. Mr Justice Daniel Goundar

Date of Hearing: 15 February 2017

Date of Judgment: 28 February 2017

Counsel:

Ms S Vaniqi for the Appellant

Ms S Serukai for the Respondent

Solicitors:

Vaniqi Lawyers for the Appellant

Office of the Director of Public Prosecutions for the State

JUDGMENT

[1] This is a timely appeal against both conviction and sentence. Following a trial in the Magistrates’ Court at Nasinu, the appellant was convicted of rape and sentenced to 7 years’ imprisonment with a non-parole period of 4 years.

Background facts

[2] The allegation of rape arose on 18 October 2004. The complainant was the appellant's niece. She was 18 years old, while he was 33 years old at the time of the offence. The complainant's evidence was that she accompanied the appellant to clean his employer's house at his request. When she was inside a bedroom, the appellant entered the room and had sexual intercourse with her. She said she did not scream because he had threatened her to keep quiet. After having sexual intercourse, the appellant told her to prepare lunch for him, but she refused. When she returned home, she complained to her aunt (father's sister). The prosecution led the recent complaint evidence from the aunt. The appellant gave evidence in his defence. He admitted having sexual intercourse with the complainant but said she consented.

[3] The appellant advances the following grounds of appeal:

• (i) That the Learned Magistrate erred in law and fact when he failed to properly assist the indigent unrepresented Accused with any cross examination or to see if there was a medical report available given the nature of the offence.

• (ii) That the Learned Magistrate erred in law and fact when he failed to take into account that the key witnesses for the prosecution were related to the Accused and complainant, and so their credibility should have been weighed against that of any available independent evidence like a Medical Report by a doctor who would have been more impartial and independent. In failing to do so there was a miscarriage of justice.

• (iii) That the Learned Magistrate erred in law and fact when he failed to consider the time the Accused spent in remand, which was 6 months and that he was a first offender.

• (iv) That the sentence is manifestly harsh and excessive.

Right to counsel

[4] Although the appellant was formally charged in 2004, the court records commence from 15 February 2010. The parties were unable to offer any explanation for the lack of records from 2004 to 2009. From 2010, the case was adjourned on numerous occasions for various reasons. The appellant was advised of his right to counsel on a number of occasions. He applied for legal aid. The application was refused. At one stage, the appellant pleaded guilty to the charge, but when he was asked to mitigate, the appellant said the sex was consensual. The guilty plea was vacated and a not guilty plea was entered.

[5] Eventually, the case was set for hearing on 17 June 2014 and the appellant was once again reminded to engage counsel or reapply for legal aid. The trial could not commence on 17 June 2014 because the learned Magistrate was attending a workshop. The case was adjourned for mentions on numerous occasions until 30 November 2015 when the trial commenced. After the prosecution case was concluded, the appellant...