Togava v State (Majority Judgment) [1990] FJCA 6; AAU0006u.90s (10 October 1990)

IN THE FIJI COURT OF APPEAL
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 6 OF 1990

BETWEEN:

JOSESE TOGAVA
JONE TUI
SEMI TUBUNA
Appellants

AND:

STATE
Respondent

The Appellants in Person
Mr. Isikeli Mataitoga, Director of Public Prosecutions for the Respondent

Date of Hearing: 10th October, 1990
Date of Delivery of Judgment:

JUDGMENT OF THE COURT

In this case the three appellants were charged, along with another, on an information that they raped the Complainant at Nasinu on 9th July 1988.

The appellants were convicted on the unanimous opinion of the assessors and were sentenced to 10 years' imprisonment. The second accused was apprehended but did not turn up for the trial. The trial judge decided to proceed with the trial agaihe three appe appellants.

Each of the three appellants appeals against his convictid sentence.

Their grounds of appeal overlap each other on many points and are not orderly and precise in their formulation so as to enable a logical tabulation. However it is possible to glean from the medley of grievances five broad groups of grounds of appeal into which all their complaints and grievances can conveniently be encompassed.

Firstly, all the appellants complain that they were not properly identified. Some of them complain that the summing-up of the learned Judge did not measure up to the Turnbull standard on identification.

Secondly, they point out the discrepancy in the statement of the complainant said to have been made to the doctor that only one man raped her and her evidence in Court that all four raped her.

Thirdly they argue that there was no corroboration of the evidence of the complainant on the allegation of rape.

Fourthly the appellants complain that the summing-up of the learned trial Judge was not fair to them in that it was slanted in favour of the prosecution and did not put their defence fairly to the assessors.

Fifthly the appellants allege that there were many vital contradictions and inconsistencies in the evidence of the prosecution witnesses which vitiated their convictions which they say were against the weight of evidence in the case.

We do not propose specifically to deal with the grounds of appeal as we are of the view that the trial was irregular to such an extent as to leave us no option but to quash the convictions.

The first matter we refer to is mentioned in the second paragraph of this judgment.

The Information charged the three appellants and one Yabaki Kaibati together in one count with the offence of rape. Yabaki Kaibati was the second accused named. He did not turn up for the trial and the learned trial Judge decided to proceed without him and try the three appellants. The State Prosecutor filed an amended Information deleting counts for Burglary and Robbery but did not delete the name of Yabaki Kaibati.

We will refer to Yabaki Kaibati as "the second accused" as this is how the State Prosecutor referred to him in her closing address. For example she said "she witnessed the rape of the victim by 2nd accused". So far as the assessors were concerned the second accused before them was the third named accused in the Information.

The learned judge also referred to "the second accused........" To quote his words he said "you must not use the evidence against the second accused Yabaki Kaibati" which you may think is the strongest to strengthen the prosecution evidence against the 3 accused who are present in Court.

Yabaki Kaibati was not an accused in that trial. The bulk of the evidence adduced by the prosecution was directed to establishing that the complainant was raped by Yabaki not once but four times only one of which was witnessed by an independent witness. The evidence against each of the appellants, of rape which came solely from the complainant, was that each of them had raped her three times. In all she complained of 13 instances of rape.

We will refer later to the directions given by the learned judge to the assessors following immediately after the warning to them referred to a little earlier in this judgment.

Our main concern is the evidence of the doctor who examined the complainant, the conduct of the prosecutor in relation thereto, the cross-examination of the doctor by the assessors and finally the failure by the learned judge to refer to such vital evidence in his summing up.

The doctor, a woman, examined the complainant some hours after the alleged rapes. In the course of preparing her report she questioned the complainant and was informed by her that to quote her words, "Four men came to her house and one of them raped her". She recorded that statement.

When being questioned by the Prosecution before the doctor was called the Complainant in evidence in chief made no mention of the alleged fact that she had told the doctor she had been raped by four men and had repeatedly stated that fact. When questioned by the learned Judge she made no mention of that fact but did tell the learned judge the doctor had informed her she had no injuries. She in fact had no injuries if a "love bite" on her neck is ignored.

In re-examination, however, of the complainant the prosecutor in referring to the medical examination elicited from her that she had told the doctor she had been raped by four men. She was then asked:

Q: If doctor recorded "four men came to her house and one of them raped her" would that be correct?

A: No that is not true. Told the doctor four men raped.

We stress the fact that the doctor was called by the prosecution and gave evidence after the complainant. The basis had been laid by the Prosecution for discrediting the doctor. She was questioned by the prosecutor in a manner designed to create doubt about the statement which the Complainant made to the doctor which the doctor recorded in writing at the time. The questions and answers were as follows:

Q: Did you faithfully record what patient told you?

A: Yes I don't work dishonestly.

Q: Could you have made a mistake?

A: I think if four men raped her she would tell me so.

It is trite law that a prosecutor can not cross examine his witness unless the witness is first declared hostile and is bound by the witness' answer if she is believed.

No application was made to declare the doctor hostile.

All three assessors were also permitted to question the doctor and two of them did question her apparently directly and not through the learned judge. It is relevant to state that in answer to a question from the first assessor the doctor stated "I recorded the patient said raped by one man".

It would appear that at that stage of the trial that assessor had abandoned his impartiality. The third assessor was even more impartial and cross examined the doctor as the following questions and answers demonstrate:

Assessor 3:

Q: Could you tell how many assailants there were for any rape victim?

A: No.

Q: What was the result of the swab test?

A: The officer-in-charge said negative for sperms."

The second assessor to his credit appreciated his duty and asked no questions.

Later the prosecution called a detective constable. It appears to us he was called solely to further discredit the doctor. We quote from his recorded evidence:

"Next I asked her if she'd agree to be medically examined, she agreed and Salote, Esita and I went to CWM Hospital where she was medically examined by the doctor. I was not present when the doctor examined her. She was with the doctor for about 15-20 minutes. When she came out of the room she told Salote and I she wasn't happy with the manner in which the doctor checked her. She said she kept telling the doctor four boys had raped her and the doctor said only one. I was double-minded about asking the doctor about that because I had been told off previously. This was my first rape case and my most serious offence. Hadn't investigated murder. "

The evidence of what the Complainant said is hearsay and should have been rejected. It was highly prejudicial and could have destroyed the effect of vital evidence advantageous to the three appellants.

It was not rejected by the learned judge.

The final unhappy chapter in this saga of the medical evidence which could have raised a doubt as to the truth of the Complainant's story incriminating the three appellants is the summing up by the learned judge. Nowhere in his summing up is there any mention of the medical evidence given by the doctor whose evidence was clearly favourable to the three appellants. This was a serious omission.

There was also serious misdirections regarding "the second accused". The learned judge said:

"Now for the charges. You will have already seen gentlemen assessors from the copies of the information before you are that there are 4 persons jointly charged with a single offence of Rape. The particulars of the charge reads as follows:

"Josese Togova, Yabaki Kaibati, Jone Ratini Tui and Semi Tubuna, on the 9th day of July, 1988 at Nasinu in the Central Division had carnal knowledge of Esita Naqera without her consent. "

Now in respect of this charge gentleman assessors you will each be asked your individual opinion as to the guilt or innocence of each accused separately. Similarly I direct you as a matter of law that inspite of the joinder of the accused you must decide the issue of guilt or otherwise of each accused quite independently and separately from that of the other accused.

In other words, you must assess and evaluate the evidence against each accused separately. You must not let the evidence against one accused weigh against or strengthen the prosecution's case against another accused.

It does not in the least follow that because you may find an accused guilty or innocent of the offence therefore the others must be guilty or innocent also.

In the particular context of this case you must not use the evidence against the second accused Yabaki Kaibati which you may think is the strongest, to strengthen the prosecution's evidence against the 3 accused who are present in court.

Having said that however, the prosecution also relies on the criminal law of the land which states:

"When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and may be charged with actually committing it, that is to say -

(a) every person who does any act for the purpose of enabling or aiding another person to commit the offence; and

(b) every person who aids and abets another person in committing the offence."

How you may ask does this law assist the prosecution in this particular case? The prosecution answers it in this way-assuming you are not sure of whether or not anyone or other of the accused had forcible sexual intercourse with Esita nevertheless he or they are deemed to have committed the offence of Rape if you are sure that whilst Esita was being forcibly raped by one of them the other 2 held her legs apart then the prosecution says by this law those 2 accuseds who held her legs apart would be just as responsible for the offence as if they themselves had had forcible sexual intercourse with her and may be charged and convicted of Rape."

These directions can only have confused the assessors.

A perusal of the Record lends support to the view that Yabati Kaibati was tried "in absentia". There was clear evidence he had sexual intercourse with the Complainant. He was not present to defend himself or give evidence which might have exonerated or assisted the three appellants.

When the learned judge referred to "the law of the land" the assessors could have been in no doubt that if there was any evidence at all that any of the appellants aided and abetted Yabaki Kaibati they could be found guilty of rape.

The most serious aspect of this trial is the admission of the highly prejudicial inadmissible evidence of the detective constable who was called by the Prosecution solely to discredit the doctor. There are other matters we could criticise.

The matters we have referred however to leaves us in no doubt that the trial was irregular and unfair to such an extent that we have no option but to quash the convictions and set aside the sentences.

Section 23(2) of the Court of Appeal Act, Cap. 12 provides as follows:

"Subject to the special provision of this Act, the Court of Appeal shall, if they allow an appeal against conviction, either quash the conviction and direct a judgment and verdict of acquittal to be entered, or if the interests of justice so require, order a new trial."

We are of the opinion that instead of directing a verdict of acquittal to be entered in favour of the Appellants the interests of justice require that a retrial be ordered in this case. We say so having regard to the totality of the evidence presented before the High Court. We are unable to say what view the assessors might have taken in respect of each Appellant had they (the assessors) been properly directed on all relevant matters. In particular we are unable to say how the assessors would have reacted had the trial judge specifically drawn their attention to the conflict between the medical evidence and the complainant's evidence. On the other hand it could be argued that the assessors must have taken the conflicting evidence into account because they heard the evidence and because the judge in his summing up did ask them, albeit in general terms, to consider the inconsistencies and discrepancies in the prosecution evidence.

As we propose to order a retrial we have, in fairness to the Appellants, deliberately refrained from referring to pieces of evidence which could be regarded as strongly supportive of the prosecution case. We have however in exercising our discretion to order a new trial considered and balanced a number of factors some of which were for and some against the Appellants.

As was said by the Privy Council in Au Pui - Quen v. Attorney General of Hong Kong (1979) 1 ALL E.R. 796 the interests of justice are not confined to the interests of the prosecution and the accused in a particular case. They include the interests of the public. Bearing in mind the nature of direct and circumstantial evidence available in this serious criminal case we feel that it would be in the interests of justice generally and in the public interest in particular that the Appellants be tried afresh before another judge notwithstanding some irregularities and some errors in the summing up in the trial already undergone by them. We are also satisfied that in the particular circumstances of this case an order of retrial will not offend against the maxim Nemo debet bis vexari de una et eadem causa - See Nirmal Son of Chandar Bali v. The Queen Privy Counsel Appeal No. 46 of 1970 where it was held that an order for new trial should not be made to enable the prosecution to make a new case or to merely fill in any gaps in evidence.

We consequently order that all 3 Appellants be tried afresh before another judge. Each Appellant is released on bail in his own recognisance in the sum of $500.00 each to appear before the High Court on a date to be notified.

Sir Moti Tikaram
Justice of Appeal

Sir Ronald Kermode
Justice of Appeal

M.D. Jesuratnam
Justice of Appeal

Aau0006u.90s