Kaiyum v State [2013] FJCA 146; AAU71.2012 (14 March 2013)

IN THE COURT OF APPEAL, FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: AAU0071 OF 2012
(High Court Criminal Case No.HAC 160 of 2010)

BETWEEN:

ABDUL KAIYUM
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini P
Goundar JA
Temo JA

Counsel : Mr. I. Khan for the Appellant
Mr. L. Fotofili for the Respondent

Date of Hearing : 27 November 2013
Date of Judgment : 14 March 2014

JUDGMENT

Calanchini P

I have had the advantage of reading the draft judgment of Goundar JA and agree with his reasons for allowing the appeal and quashing the convictions.

Goundar JA

Introduction

[1] Following a trial in the High Court at Suva, the appellant was convicted of sexual assault and rape, and sentenced to a total term of 10 years' imprisonment with a non-parole period of 7 years. This appeal is against conviction only.

[2] At the hearing of the appeal, counsel for the State brought to our attention that the appellant had not obtained leave to appeal on the grounds of mixed law and fact, or fact alone pursuant to section 21(1)(b) of the Court of Appeal Act. We proceeded to hear the appeal on the basis that leave would be taken under advisement when considering the substantive appeal.

Evidence led at trial

[3] The prosecution case was based on the complainant's testimony and medical evidence. The facts are unusual as this appears to be the first case in Fiji where the rape victim is an adult man. At the time the allegations arose, the victim was 37 years old and married. The appellant was slightly older than the victim and was his uncle. The victim's mother was married to the appellant's brother. The appellant was also married. However, at the time the allegations arose, he was separated from his wife but they remain in contact with each other.

[4] It was not in dispute that the victim suffered from some form of physical disability, but the nature and the extent of that disability was not fully disclosed at the trial. In examination-in-chief, the victim said that he could not remember the exact date, but the alleged incidents occurred sometime in August 2010. He was alone at home on that particular night. His wife was in the hospital. It was between 9pm and 10pm when his uncle, the appellant arrived at his home. The appellant asked him if he could sleep overnight at his home and leave in the morning. The victim agreed. The victim said he was wearing short pants and a vest on that particular night. Both men shared the same bed. While they were on the bed, the appellant forcefully removed the victim's clothes, lubricated his penis with cream and masturbated him until he ejaculated. The appellant then masturbated himself until he ejaculated as well. After ejaculating, the appellant penetrated the complainant's anus three times. He left the complainant's home the same night. The complainant said he did not agree to any sexual acts with the appellant. The following morning, the complainant told the appellant's brother that the appellant had raped him.

[5] On 14 August 2010, the complainant was medically examined. The complainant told the examining doctor that he was sexually assaulted four days ago and that his anus was painful. Upon examination, the doctor did not find any visible marks or injuries in the complainant's anus. The doctor was unable to ascertain the cause of the complainant's anal pain. At trial, the examining doctor gave evidence and offered three possible explanations for the absence of injuries in the complainant's anus:

1. That lubricant was used.
   
2. Examination was carried out four days after the alleged assault.
   
3. The victim being disabled meant that the anal muscles were not strong enough, and therefore, not revealing normal signs of injury.
   

[6] After the close of the prosecution's case, the appellant gave evidence and called four witnesses. The appellant denied the allegations made against him by the complainant. He said that the only time he spent the night at the complainant's house in the month of August 2010 was on the 7th August. He said his wife accompanied him to the complainant's house and the following morning they left the complainant's house together. He did not return to the complainant's house because he was too busy with a construction until 14 August when he was arrested. The appellant's wife gave evidence, supporting the appellant's version that they went together to the complainant's house on 7 August 2010. However, the complainant's wife could not verify the whereabouts of the appellant on other days because at that time they were separated and not living together. The appellant apparently was living with his mother, Famida Bibi in August 2010. Bibi gave evidence but she could not verify the movements of the appellant in August 2010.

[7] The third defence witness was the appellant's brother Abdul Jabak. Jabak gave evidence that the complainant complained to him that the appellant had raped him when he went to his home in August 2010. Jabak's reaction to the complaint was that he did not believe the complainant because he often lied. The fourth witness was Mohammed Khan who lived on the same street as the complainant. He said that he had witnessed on a few occasions that the complainant was a short tempered person.

Consideration of grounds of appeal

[8] The Notice of Appeal contains eleven grounds of appeal. On the day of hearing, counsel for the appellant elected to argue grounds 1-5, 7, 8 and 11 only. These grounds can be conveniently dealt together under two headings. Grounds 6, 9 and 10 were abandoned.

Sufficiency of evidence

[9] The appellant's first complaint relates to the inadequacy of the medical evidence led by the prosecution. At trial, the prosecution tendered the medical report of the complainant in addition to the examining doctor's oral evidence. Apart from the clinical finding, the prosecution led evidence of possible explanations for the lack of physical marks or injuries in the complainant's anus. The learned judge summarized the doctor's evidence in his summing up as follows:

"You will remember that the Doctor said that he was told that the patient had been sexually assaulted but that he could not identify any abrasions or injuries to the penis or to the anus. He went on to say that if there had been an assault, that the absence of marks of injury could be explained by three factors: 1) that lubricant was used 2) the report was of assault four days earlier or 3) the victim being disabled meant that the anal muscles were not strong therefore not revealing normal signs of injury. He told Mr. Rabuku in cross-examination that despite the patient's report of a painful anus on seeing no signs of injury, he did not see the need to carry out any further tests to determine the cause of pain."

[10] Clearly, the medical evidence in this case could not be considered in isolation from the complainant's testimony. The complainant's testimony was that the appellant lubricated his penis with a lotion cream before penetrating him. It was not in dispute that the clinical finding of the examining doctor was that no injury was found in the anus of the complainant. In other words, the prosecution's case was that the penetration of the anus does not necessarily result in injuries. Furthermore, the prosecution relied on the plausible explanations offered by the doctor for the lack of marks or injuries in the anus of the complainant. No criticism can be made regarding the medical evidence in this case.

[11] The appellant's second complaint relates to reasonableness of the guilty verdicts on the evidence led at the trial. It is the appellant's contention that if the learned trial judge had carried out an independent analysis of the evidence after the assessors expressed opinions that the appellant was guilty of the charges, he would have disagreed with those opinions and would have found the appellant not guilty. Counsel for the appellant cites the Supreme Court judgment of Ram v State (unreported CAV1 of 2011; 9 May 2012) to support his contention that the trial judge is required by law to carry out an independent analysis of evidence before pronouncing judgment even in cases where the judge affirms the opinions of the assessors.

[12] In Ram, the Supreme Court said at paragraph [80]:

"A trial judge's decision to differ from, or affirm, the opinion of the assessors necessarily involves an evaluation of the entirety of the evidence led at the trial including the agreed facts, and so does the decision of the Court of Appeal where the soundness of the trial judge's decision is challenged by way of appeal as in the instant case. In independently assessing the evidence in the case, it is necessary for a trial judge or appellate court to be satisfied that the ultimate verdict is supported by the evidence and is not perverse. The function of the Court of Appeal or even this Court in evaluating the evidence and making an independent assessment thereof, is essentially of a supervisory nature, and an appellate court will not set aside a verdict of a lower court unless the verdict is unsafe and dangerous having regard to the totality of evidence in the case."

[13] While we accept that in Ram the Supreme Court did state that an independent analysis of evidence by the trial judge was necessary to ensure the verdict is supported by evidence, the remark is only an obiter dicta. We say this because the remark was made in the course of formulating the test when a guilty verdict is challenged on the basis that it is unreasonable or cannot be supported having regard to the evidence ( see, section 23 (1) (a) of the Court of Appeal Act). In subsequent cases, the Supreme Court has clarified that where the trial judge agrees with the opinions rendered by the assessors, section 237 of the Criminal Procedure Decree does not require the trial judge to carry out an independent analysis of evidence before pronouncing judgment. But the Supreme Court has endorsed that "a short written judgment, even where conforming with the assessors' opinions is a sound practice" (State v Miller (unreported CAV 8 of 2009; 15 April 2011, Mohammed v State (unreported CAV 2 of 2013; 27 February 2014).

[14] In the present case, the learned trial judge delivered his decision to convict the appellant in compliance with section 237 of the Criminal Procedure Decree. However, the appellant's contention is that if the learned trial judge had carried out an independent analysis of the evidence, he could not have reasonably arrived at a guilty verdict. When a verdict is challenged on the basis that it is unreasonable, the test is whether the trial judge could have reasonably convicted on the evidence before him (Ram v State (supra)).

[15] In all criminal trials, the prosecution carries the burden to satisfy beyond a reasonable doubt every essential element of the charged offence. In the present case, sexual assault required proof of an indecent assault on the victim without his consent. Rape required proof of penile penetration of the victim's anus without his consent. The only incriminating evidence led by the prosecution against the appellant was the victim's testimony. The medical evidence did not incriminate the appellant at all. In his evidence, the victim said the appellant forcefully removed his clothes, masturbated him and then penetrated his anus without his consent. The victim did not give any further details regarding the force used by the appellant to remove his clothes. Nor did he explain why he did not resist when the alleged sexual acts were committed on him. Section 206 of the Crimes Decree defines consent as follows:

In this Part –

(1) The term "consent" means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.

(2) Without limiting sub-section (1), a person's consent to an act is not freely and voluntarily given if it is obtained –

• (a) by force; or
  
• (b) by threat or intimidation; or
  
• (c) by fear of bodily harm; or
  
• (d) by exercise of authority; or
  
• (e) by false and fraudulent representations about the nature or purpose of the act; or
  
• (f) by a mistaken belief induced by the accused person that the accused person was the person's sexual partner.
  

[16] While we accept that submission without physical resistance alone cannot constitute consent, there has to be evidence that the victim did not freely and voluntarily agree to the alleged sexual acts. In the present case, the victim said his clothes were removed by force. But when it came to masturbation of his penis and penetration of his anus, he offered no resistance saying he did not agree to what was done to him. The victim did not say that the sexual acts were committed on him by force, threat or intimidation, fear of bodily harm or by exercise of authority. It seems that the defence took a strategic position and did not explore the issue of consent in cross-examination of the victim. The defence was relying on alibi and was saying the sexual incidents had not occurred at all.

[17] Regardless of the strategic position taken by the defence, the prosecution was not relieved from the burden to prove the element of lack of consent beyond a reasonable doubt. It was incumbent upon the prosecution to ask the victim how his clothes were removed by force by the appellant and why he did not resist when the appellant masturbated and penetrated his anus. There was no suggestion that the victim was incapacitated from resisting due to his disability. In his evidence, he offered no explanation for his submission to the sexual acts. The paucity of evidence on consent or lack of it was may be due to the reluctance on behalf of both men to tell the whole truth. If the learned trial judge had analyzed the evidence in its totality, he should have entertained a reasonable doubt as to lack of consent, even if satisfied that the alleged sexual acts did occur. For these reasons, we are satisfied that the guilty verdicts on the two charges are unreasonable. The appeal should succeed on this ground.

Inadequate consideration of the appellant's defence

[18] Three days before the commencement of the trial, the appellant gave a notice of alibi pursuant to section 125 of the Criminal Procedure Decree. The notice named the appellant's wife and mother as his alibi witnesses. Although the notice was late, the prosecution did not object to the late alibi notice. According to the prosecution, the charges arose between 1 August 2010 and 31 August 2010. Counsel for the appellant submits that the dates were too broad and unfair on the appellant when it came to giving an alibi notice. We agree. The appellant was arrested on the allegations on 14 August 2010. He was caution interviewed on 15 August 2010 and formally charged on 16 August 2010. Thus, the appellant could not have possibly committed the offences after 13 August 2010.

[19] Furthermore, the victim was medically examined on 14 August 2010. He told the doctor that he was assaulted four days ago. If what the victim said to the doctor was true, then the alleged incidents occurred on 10 August 2010.In the present case, the prosecution could have worked out a more precise date for the charges in fairness to the appellant. It is rather unfortunate that the appellant's trial counsel did not seek a more precise date of the allegations to give proper notice of alibi. The alibi notice was given in broad terms, based on the manner in which the charges were drafted. The appellant's alibi was that he only went once to the victim's house in the month of August 2010 accompanied by his wife.

[20] Clearly, the notice did not constitute an alibi because the precise date of the allegations was not made known to the appellant. The learned trial judge fairly summarized all the evidence led by the defence. At paragraph [16] of the summing up, the learned trial judge fairly directed the assessors that although the appellant gave evidence and called witnesses, the prosecution was not relieved from the burden to prove his guilt on both charges beyond a reasonable doubt. The assessors were further directed that the appellant does not have to prove anything. We are satisfied that the learned trial judge fairly and adequately dealt with the defence's case in his summing-up to the assessors.

[21] A further complaint made under this ground was that the trial judge's reference to the complainant as the victim in the summing up showed pre-judgment on behalf of the trial judge. Counsel for the appellant has not cited any authority to support his contention that reference to the complainant as the victim is prejudicial and objectionable. On 15 March 2011, the then trial counsel for the appellant signed a statement of agreed facts that referred to the complainant as the victim. We cannot see any legitimate complaint that can arise from the fact that the complainant was referred to as the victim by the trial judge in his summing up. These grounds fail.

Conclusion

[22] For the reasons given, the appeal against convictions must be allowed on the ground that the guilty verdicts are unreasonable based on the paucity of evidence led by the prosecution at the trial.

Temo JA

I agree that this appeal should be allowed for the reasons given by Goundar JA.

The Orders of the Court are:

1. Leave to appeal pursuant to section 21 (1) of the Court of Appeal Act is granted.
2. Appeal against convictions allowed.
3. Convictions quashed.
4. The appellant is acquitted on both charges.
   

.........................................
Hon. Justice W. Calanchini
President, Court of Appeal

..........................................
Hon. Justice D. Goundar
Justice of Appeal

.........................................
Hon. Justice S. Temo
Justice of Appeal