THE Court of Appeal has ordered a retrial after quashing a man’s 11-year prison sentence for raping and sexually assaulting his daughter-in-law.
In 2024, the man was convicted by the High Court in Suva on a count each of indecent assault, rape and sexual assault committed in 2021
The man was accused of indecently assaulting his daughter-in-law by rubbing his beard against her neck while she slept, raping her digitally during a head massage, and sexually assaulting her by touching her ankle and private parts over her clothes, an incident she captured on video.
According to the 20-page decision delivered by Justices Isikeli Mataitoga, Karen Clark, and Gerrard Winter, the man was treated unfairly in the manner in which evidence should have been scrutinised in a separate ruling on the admissibility of the video recording.
A central issue on appeal was the former trial lawyer’s mistake in consenting to admit the mobile phone video without a separate voir dire admissibility hearing, which the appellate judges deemed highly prejudicial. A police constable admitted the police station lacked equipment to even view the CD, and no dispatch entry was recorded when the evidence was sent to another station.
They found that the trial miscarried in its conduct and in the lack of adequate assessment of evidence to prove the charges. The justices said it was the role of the judge as the “gatekeeper” of all evidence in the trial to ensure that even consented evidence was both admissible and relevant, which did not happen in this case.
“The video slipped into the trial in error when it was, as we have found, clearly inadmissible and irrelevant,” the justices ruled.
In addition, they found several inconsistencies, especially in the victim’s evidence, which were not properly addressed in the trial.
The victim, when asked during cross-examination if she would have ever gone to the police, had her husband stayed with her instead of leaving the marriage, answered “No”.
The failure to reconcile the inconsistencies and contradictions in this trial judgment also resulted in a miscarriage, which the judges said supported the man’s claim of a substantial miscarriage of justice.
The man was represented by Mohammed Saneem of Saneem Lawyers’ law firm.
