Senikarawa v State [2006] FJCA 25; AAU0005.2004S (24 March 2006)

IN THE COURT OF APPEAL FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0005 of 2004S
(High Court Criminal Action No. HAC 17 of 2002S)

BETWEEN:

PENIASI SENIKARAWA
Appellant

AND:

THE STATE
Respondent

Coram: Ward, President
Stein, JA
Ford, JA

Hearing: Wednesday, 22 March 2006, Suva

Counsel: Appellant in Person
Mr. D. Gounder for the Respondent

Date of Judgment: Friday, 24 March 2006, Suva

JUDGMENT OF THE COURT

[1] The appellant was found guilty and convicted on the following five counts and sentenced as follows:-

• Count 1 Indecent Assault–3 years imprisonment
  
• Count 2 Indecently Annoying female - 6 months imprisonment
  
• Count 3 Rape – 11 years imprisonment
  
• Count 4 Indecent Assault - 4 years imprisonment
  
• Count 5 Indecent Assault - 4 years imprisonment
  

The sentences were ordered to be served concurrently.

[2] The court granted leave to the appellant to appeal on the following grounds:

• "The evidence led and the direction to the assessors on acts of violence or sexual abuse by the appellant which were not the subject of charges in the trial.
  
• The admissibility of complaints by the victim and the direction of the learned Judge on the effect of recent complaint on the assessment of the complainant’s evidence."
  

The Evidence

[3] The evidence may be summarised from the State submission as follows:-

"The complainant was the appellant’s stepdaughter. She lived in a house with her mother, the appellant and other siblings at Vakabalea Road in Navua. The house was made of corrugated iron and timber and had three rooms. The complainant was 14 years old at the time of the alleged offences."

On a date that could not be ascertained, between the 1st of November and the 30th of November 2001, the appellant called the complainant into his bedroom. The complainant saw the appellant lying naked on his bed. The appellant told the complainant to take a "voivoi" and measure his penis. The complainant complied with the instruction and returned to the kitchen. The complainant did not complain to anyone about this incident. The appellant used no compulsion or force. The complainant neither objected nor resisted, but submitted to the appellant’s instruction. This incident was subject of count one.

On the 1st of November 2001, the complainant was in her room when her younger brother called her into the kitchen. The complainant saw the appellant lying naked on the table and holding his penis. The appellant showed his penis to the complainant. The complainant did not complain to anyone about this incident. This incident was subject of count two.

The rape incident occurred in November 2001 as well. This incident was subject of count three. The complainant was in her brother’s bedroom when the appellant entered the room through the back door. The appellant climbed on top of the complainant and raped her. After the rape, the complainant washed herself. She complained to her mother about the rape two days later. The complainant said that she was afraid of the appellant. The complainant’s mother confronted the appellant who apologised to her in complainant’s presence.

The complainant further said that between November 2001 and February 2002, the appellant on a number of occasions applied mashed chillies to the complainant’s vagina. No specific dates were given. All these incidents occurred at their home Only two of the incidents were subject of the charges, that is, count four and five."

[4] The judge permitted the admission of evidence of incidents or acts not subject of the charges. For example, the mother said that her daughter had complained that the appellant touched her breast. She said she had seen the appellant forcing the complainant to kiss him. The complainant did not give evidence of these matters. The mother also said she was aware that the complainant had rubbed chillies on the complainant’s vagina although only two such charges were before the court.

[5] When interviewed the appellant denied all of the charges although he admitted rubbing chillies in the complainant’s anus twice to punish her. He admitted accidentally exposing himself on one occasion and of accidentally touching the complainant’s private parts.

The First Count-Indecent Assault

[6] For the first count – indecent assault – to succeed, there must be an assault Fairclough v. Whipp (1951) 35 Cr. App. R 138, or at least a hostile act towards the complainant accompanied by an act of indecency, Beal v. Kelley (1951) 35 Cr. App. R 128.

[7] In the absence of such evidence the State concedes that the conviction on count one cannot stand and must be quashed. We agree with the submission although noting that it would make no practical difference to the sentence because of its concurrent nature. We note that the evidence may amount to a lesser offence than indecent assault.

Evidence of Uncharged Offences

[8] The learned judge admitted evidence of uncharged acts by the appellant against the complainant. The question of admissibility of such evidence is tested by the broader principle of whether the probative value of the evidence outweighs the prejudice to the accused, R v. Boardman [1975] AC 421, Pfennig v. R [1995] HCA 7; (1994-95) 127 ALR 99.

[9] The nature of the evidence here was relationship evidence. The evidence of the uncharged acts provided an insight into the relationship between the appellant and the complainant and also the mother. It had a probative value beyond its tendency to prove a relevant propensity. It demonstrated an ongoing sexual attraction towards the complainant.

[10] In her summing up the judge said:

"The other reason is that it may explain why Mereseini did not report the matter for some months. This was evidence of violent behaviour that her mother said caused Mereseini to live in fear of her stepfather. Although he has not been charged with the kissing incident, or of touching her breasts, such evidence shows a propensity of the part of the accused to behave in a sexual way to his step-daughter. Such evidence may assist you in deciding whether the accused is guilty or not on each count as charged."

[11] This direction was sufficient to make it clear to the assessors of the purpose to be made of the evidence of uncharged acts. The assessors must have concluded that the appellant had a marked sexual interest in the complainant and an inclination to manifest that interest physically.

[12] The direction was adequate and we are not persuaded that there has been a substantial miscarriage of justice although the inconsistencies between the evidence of the complainant and her mother should have been pointed out to the assessors. This ground of appeal fails.

Evidence of recent complaint

[13] The second ground of appeal concerns the admission of evidence of recent complaint and the Judge’s direction as to the use to be made of such evidence by the assessors.

[14] Evidence of recent complaint may be adduced to show the consistency of the conduct of the complainant and to negative consent. Kory White v. R [1998] UKPC 38; [1999] AC 210 requires that both the complainant and the named person to whom the complaint was made must testify as to the terms of the complaint. If the evidence of recent complaint is admitted then the jury should be directed that such complaint is not evidence of the facts complained of and cannot be regarded as corroboration, but goes to the consistency of the conduct of the complainant with her evidence given at the trial.

[15] The principle on which the evidence is admitted is to support and enhance the credibility of the complainant. The jury, in assessing the truth of the complainant’s evidence, may take into account evidence as to the consistency between that evidence and evidence of her contemporaneous complaint. It can be an aid to her credit (Spooner v. R [2004] EWCA Crim. 1320, Eng. Court of Appeal).

[16] Spooner also considered the degree of consistency required for the evidence of recent complaint. Thomas LJ said:

"The decision in each case as to whether it is sufficiently consistent for it to be admissible must depend on the facts. It is not in our judgment necessary that the complaint discloses the ingredients of the offence; it will, however, usually be necessary that the complaint discloses evidence of material and relevant unlawful sexual conduct on the part of the defendant which could support the credibility of the complainant. It is not, therefore, usually be necessary that the complaint describes the full extent of the unlawful sexual conduct alleged by the complainant in the witness box, provided it is capable of supporting the credibility of the complainant’s evidence given at the trial.

Differences may be accounted for by a variety of matters, but it is for the jury to assess these. For example, in cases of alleged abuse (such as this) by a stepfather or other family member, it would be for the jury to consider whether the difference arises because, as is known to happen on some occasions, the complainant cannot bring herself to disclose the full extent of the conduct alleged against the defendant at the time of the contemporaneous complaint."

[17] In her evidence in chief the complainant said that she complained to her mother about the rape by the appellant. However, the mother gave no evidence that her daughter complained to her of rape but only of other matters (which were uncharged acts) and that the accused put chillies on her private parts. The mother said that she couldn’t recall if her daughter told her of any other sexual assault. She said "she may have told me but I don’t recall."

[18] It will be seen that there is no evidence of consistency of recent complaint by the complainant and the mother. The mother does not confirm her daughter’s evidence that she complained to her about being raped by the appellant. It follows that there was no evidence of recent complaint of rape fit to be put to the assessors. The judge’s direction to the assessors was therefore wrong and a material misdirection. It could not be used to enhance the credibility of the complainant and the assessors should have been so advised. We are of the opinion that this constitutes a substantial miscarriage of justice.

[19] The judge also admitted evidence of recent complaint by the complainant’s aunt Taina on 20 February 2002. However, this does not qualify as a recent complaint since all of the alleged offences took place in November 2001 except the charge in count 5 involving the chillies and this is said to have occurred between 1 November 2001 and 17 February 2002.

[20] There is also a high level of inconsistency between the evidence of complaint by the complainant and that of Taina.

[21] In our belief the evidence of recent complaint by the complainant to Taina should not have been admitted. To admit it constitutes a substantial miscarriage of justice.

[22] There is also the question of the evidence of Dr. Elsie Bentley who examined the complainant on 21 February 2002. In the summing-up the learned judge said that the complainant "told her [the doctor] that she had sexual intercourse with her stepfather by force in November 2001." Her Lordship told the assessors that Dr. Bentley’s evidence showed Mereseini’s "consistency as a witness." This was a misleading direction and we are unclear of the basis upon which it was put to the assessors. Again, we think that if it was on the basis of recent complaint evidence it should not have been so admitted and placed before the assessors.

[23] The same may be said for the evidence of the police officer, Pradeep Kumar, who said that the complainant told him that she had been raped and indecently assaulted by the appellant. This evidence should not have been admitted and we believe led to a miscarriage of justice. Having been admitted the lack of probative value should have been explained to the assessors.

[24] In any event, the direction given to the assessors on recent complaint was itself defective. It spoke of "strengthening" the complainant’s evidence. This was a misdirection. The direction could have spoken of strengthening the credibility of the complainant but not strengthening her evidence. Again, this was a misdirection which amounted to a miscarriage of justice.

Result

[25] We are of the opinion that a new trial should be ordered on counts 2 to 5 The appeal should be allowed and all of the convictions should be quashed but the retrial should exclude count 1 and be confined to counts 2 to 5 inclusive. We recommend that the Legal Aid Commission reconsider the appellant’s application for legal aid given the complexities of the trial. The order made by the Judge under section 12 of the Juveniles Act remains in force.

Ward, President
Stein, JA
Ford, JA

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions, Suva for the Respondent