Kaitavu v State [1990] FJCA 13; AAU0015u.89s (6 November 1990)

Fiji Islands - Kaitavu v The State - Pacific Law Materials

IN THE FIJI COURT OF APPEAL

CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 15 OF 1989

BETWEEN:

r> FILIMONE KAITAVU
Appellant

AND:

THE STATE
Respondent

Appellant in Person
Mr. mesi for the Respondent

Date of Hearing : 22nd October, 1990.
Delivery of Judgment: 6th November, 1990.

JUDGMENT OF THE COURT

The appellant, who appears in person, was, on the 2nd November, 1989 convicted by the High Court at Suva of rape contrary to Section 149 of the Penal Code and sentenced to five years imprisonment. He appeals against conviction and sentence on the following grounds which the appellant has formulated himself without assistance of any solicitor:

"(i) That the learned trial judge erred in law when he misdirected the assessors when telling them that they were bound to approach my confession on the footing that it has been properly obtained.

(ii) That the test of admissibility of my confession on the promises made to me by the investigation officer 'Maafu' that if I confessed, I will not be prosecuted was inadequately tested as a witness of mine who heard the promise made to me was not called or summoned by the court to give evidence in my defence. The witness was my father.

(iii) That the State Prosecutor had failed to produce corroborative evidence to support the claims of allegation made by the complainant.

(iv) That the trial judge erred in law when directing the Assessors to my confession as evidence of corroboration when in fact the test of admissibility of my confession was incomplete.

(v) That a vital evidence to my defence was omitted by the trial judge. That the evidence was the doctor's medical examination report on the complainant regarding her allegations on being raped. Had that evidence being shown to the assessors a favourable verdict would have been returned for me.

(vi) That the trial judge commented, "that the Chief Justice was justified and correct in convicting and sentencing me to five years imprisonment", was uncalled for and was an indication of prejudice against me swaying his good sense of justice from conducting a fair trial.

(vii) That taking into consideration all circumstances of the case the said five years of imprisonment is too harsh and excessive."

Except that the Appellant denied having sexual relations with the Complainant the Appellant's story given on oath confirmed the basic facts related by her.

We propose only to repeat the brief summary of the complainant's story as stated by the learned trial judge. He said:

"The complainant's case is that on Christmas day, 1985 she met a friend who was the sister of the accused, Adi, and another friend. They finally ended up at the home of the accused. They had drinks at various places, finally she was taken to the house of the accused. She says she was not willing because she wanted to get back home which is one the next street, close by but the accused would not allow her. She says at a certain stage that at about 2.00 a.m. on the next day, the 26th of December, the accused pulled her out of the house, assaulted her and raped her. Her story is very clear."

The Appellant confessed to having sexual intercourse with the Complainant and confirmed all relevant allegations made by her. His confession statement was the subject of a trial within a trial and was admitted. The learned judge very carefully instructed the assessors. The assessors also had the benefit of considering the evidence of the Appellant given on oath and all three were of the opinion that the appellant was guilty.

There is nothing in the Record to support the Appellants complaint set out in grounds (i), (ii) and (iv).

There is no merit in grounds (i), (ii) and (iv).

We will deal with grounds (iii) and (v) together. The learned trial judge quite properly found corroboration in the detailed confession of the appellant tendered by the prosecution through the police officer who received it.

As regards the medical evidence. The record indicates that the prosecution sought to introduce the doctor's report pursuant to the provisions of Section 291 of the Criminal Procedure Code which is as follows:

"The deposition of a Government analyst or of a medical practitioner, taken and attested by a magistrate in the presence of the accused person, may, with the consent of the accused person or his barrister and solicitor, be read as evidence although the deponent is not called as a witness:

Provided that the court may, if it thinks fit, summon and examine such deponent as to the subject-matter of his deposition.

(Amended by 27 of 1953, s.3, and 4 of 1955, s.6.)"

The appellant objected to the medical report being tendered without calling the doctor.

The doctor was not called.

At that stage of the trial the assessors were not aware of the confession and there was not before the court any evidence to corroborate the complainant's story.

In our view the doctor should have been called. There is no indication in the record to indicate why he was not called. If the confession statement had not been admitted there would have been no corroboration which is not necessarily fatal to the Prosecution's Case but was certainly very desirable. Furthermore the quite serious injuries suffered by the complainant would have been brought to the attention of the learned judge and would indeed have corroborated the Complainant's story. The aggravated assault leading to the rape could have affected the sentence. While in this instant case the doctor's evidence would probably have confirmed the rape it is conceivable that the doctor could not have confirmed sexual intercourse as the complainant was at the time menstruating or the doctor may have had doubts.

She could however have confirmed the serious nature of the assault which the appellant admitted. In court he denied having sex with her.

The report was not tendered. While the appellant refused to assent to the production of the report unless the doctor was called the learned judge did not see fit to summon the doctor to appear and give evidence.

In the circumstances we do not consider that omission fatal to the Prosecution case. We would in any event in view of the very clear evidence of the commission of the offence, apply the proviso on the grounds that no miscarriage of justice had occurred.

As regards ground (vi) the comment made by the learned judge was made after conviction. The trial before the learned judge was the second trial. On the first trial the appellant was sentenced to 6 years imprisonment. The learned judge referred to the fact that the appellant had served a year and while he was minded to impose a like sentence he took the one year he had served in person into account.

This leaves only the question of sentence. The assault was a brutal attack on a young girl. The appellant informed the court the complainant had claimed she was a virgin and a student. He did not believe her and got annoyed and his annoyance resulted in a vicious assault and rape.

We do not consider the sentence is harsh or excessive.

There is no merit in any of the grounds of appeal which is dismissed.

Sir Moti Tikaram
Justice of Appeal

Sir Ronald Kermode
Justice of Appeal

D.V. Fatiaki
Justice of Appeal

Aau0015u.89s