Kumar v State [2015] FJCA 32; AAU0049.2012 (4 March 2015)

IN THE COURT OF APPEAL, FIJI
[On Appeal From The High Court]
CRIMINAL APPEAL NO.AAU0049 of 2012
[High Court Crim. Case No. HAC074 of 2011Ltk]

BETWEEN:

RAHUL RAVINESH KUMAR
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini P
Basnayake JA
Goundar JA

Counsel : Mr. K. Tunidau for the Appellant
Ms P. Madanavosa for the Respondent

Date of Hearing : 11 February 2015
Date of Judgment : 4 March 2015

JUDGMENT

Calanchini P:
[1] I have had the opportunity to read in draft the judgment of Goundar JA and agree that in the circumstances of this case and in accordance with section 26 of the Constitution it was not necessary for the complainant's evidence to be corroborated. For the same reasons nor was it necessary for the learned trial Judge to give a warning or caution direction in his summing up.

[2] However I venture to add some comments on the operation of section 26 of the Constitution with particular reference to the issue of unfair discrimination on the ground of age. The first point is that it is not discrimination on the ground of age per se that will result a law being in breach of the right. Section 26 (3) and section 26 (6) clearly state that the discrimination will fall foul of the section if it is unfair.

[3] It is no doubt for that reason that laws that prohibit tobacco being sold to a young person, laws that require a young person to be a certain age before being able to enter a licensed premises and purchase alcohol and laws that require a young person to be of a certain age before being eligible to apply for a licence to drive a motor vehicle are not challenged for being in breach of section 26. The discrimination is based on different but sound grounds and is not regarded as unfair discrimination. Even more significant is the requirement in section 55 (1) of the Constitution that a person must be at least 18 years old in order to be eligible to register as a voter.

[4] Secondly, at common law there is a requirement for a warning to be given of the danger of convicting on the uncorroborated evidence of a child "who although old enough to take the oath was nevertheless young enough to suffer from imperfect comprehension of events or imperfect powers of expressions." (per Dawson J in McKinney –v- The Queen [1991] HCA 6; (1991) 171 CLR 468 at 488).

[5] In my judgment section 10 of the Juveniles Act Cap 56 is intended to extend the common law by rendering admissible evidence given by a child who does not understand the nature of the oath on certain conditions being satisfied and in a certain manner. However when evidence is admissible in the circumstances prescribed by section 10 it must be corroborated before a person can be convicted of an offence.

[6] It appears to me that to allow the evidence given by a child who does not understand the nature of an oath and which is not corroborated to be the basis for the conviction of an offence without a warning of the danger of doing so would be a breach of an accused person's right to a fair trial under the Constitution. Furthermore I remain of the view that the common law requirement for a warning in relation to the evidence of children should remain, unless the circumstances render it unnecessary. I accept that there is no basis and probably never was any sound reason for requiring corroboration of the evidence of a complainant of a sexual offence. Not surprisingly, that requirement has been abolished by statute. But children, especially young children, are still young children with all the frailties that are associated with childhood.

Basnayake JA:
I agree the appeal against conviction should be dismissed for the reasons given by Goundar JA.

Goundar JA:
[1] The appellant was convicted of rape after a trial in the High Court at Lautoka and sentenced to 10 years' imprisonment. He is eligible for parole after serving 8 years. This is his appeal against conviction only on the following grounds:

Ground 1: The trial Judge erred in law by failing to consider whether the generality of section 129 of the Criminal Procedure Decree 2009 overrides section 10(1) of the Juveniles Act, and section 15(1) of the Constitution of the Republic of Fiji 2013 on the issue of corroboration of the evidence of children of tender years.

Ground 2: The trial Judge erred in law and in fact by expressing comment at paragraph 40 of the summing up on the question of Parwati's memory due to her age and as an interested witness, where such comment can lead the assessors to think that he was directing them that they must find the facts in the way he indicated.

Ground 3: The trial Judge erred in law and in fact in not sufficiently putting the defence case to the assessors.

Evidence led at trial
[2] The prosecution case against the appellant wholly depended upon the complainant's evidence. The complainant was a child. Her date of birth was 1 September 2003. When the allegation arose, she was 7 years old, but by the time the trial commenced she had turned 8.

[3] The charge alleged that the offence was committed at Cuvu, Sigatoka on 19 February 2011. The complainant did not give the specific date of the alleged rape. Her evidence was that the incident happened on the day her parents left her and her younger sister under the care of the appellant and went for grocery shopping after shifting into their new home in Sigatoka. The appellant knew the complainant and her family. He was their neighbour when they lived in Lautoka and the evidence showed he got on well with the complainant's father. He accompanied the complainant's family to Sigatoka to assist them with shifting.

[4] In relation to the alleged incident, the complainant said when she came out of the shower wearing a towel, the appellant pulled her towel away and took her into a bedroom. When they were in the bedroom, the complainant's younger sister intervened but the appellant chased her away. After the younger sister had left, the appellant penetrated the complainant's vagina with his penis. The complainant described the experience as very painful. She said she was pushing the appellant away and was crying. When he was done, the appellant told her to go and have a shower.

[5] When her parents returned home, the complainant made no complaint to them. The complainant's father gave evidence that when he returned home from grocery shopping he thought she had not had her shower because she was wearing a bath towel. He said it appeared to him that she wanted to say something to him but he told her to finish her shower. The complainant told the trial court that she was too scared to complain. Eventually she told a male relative about the sexual abuse when he saw her behaving in an unusual manner. When the parents learnt about the alleged incident from the relative, the matter was reported to the police.

[6] On 15 March 2011 (nearly a month after the alleged incident), the complainant was medically examined. Medical examination revealed that the complainant's hymen was ruptured.

[7] The appellant's defence was denial of the charge. His evidence was that the complainant was never left alone under his care by her parents as alleged. He admitted that on 19 February 2011 he accompanied the complainant's family from Lautoka to Sigatoka to assist them with shifting. After unloading the household items, the complainant's parents went away for grocery shopping by leaving their daughters with the landlady, Parwati Nair. He did not have access to the complainant and therefore he could not have raped her. The following day, on 20 February 2011, he said he was with the complainant's father at all times. On the third day, 21 February 2011, the complainant's parents dropped the appellant at the highway to catch a bus to his home in Lautoka.

[8] Parwati Nair gave evidence for the defence. She said that on the day the complainant's family moved into her house, she fed the two girls 'roti' (Indian bread) for lunch when their parents went away for grocery shopping. She said she was not sure of the date when the complainant's family moved into her house but it was a Saturday.

Constitutionality of corroboration requirement for children's evidence
[9] The first alleged error arises from the trial judge's direction to the assessors at para 36 of the summing up that "there is no rule for you to look for corroboration of the victim's story to bring home an opinion of guilty in a rape case". In crafting his arguments, counsel for the appellant submits that section 129 of the Criminal Procedure Decree 2009 has not abolished the law requiring corroboration for children's evidence and that the failure of the trial judge to give corroboration directions on the complainant's evidence breached the appellant's constitutional right to a fair trial.

[10] Counsel for the State submits that the law on corroboration for child witnesses was abolished by the High Court in State v A.V unreported Criminal Case No. HAC 192 of 2008; 2 February 2008. In that case the High Court held that section 10 of the Juveniles Act, Cap. 56 and the common law requirement for corroboration for child witnesses unfairly discriminated against children on the ground of age and deprived them equality before the law as guaranteed by the Constitution Amendment Act 1997 (the 1997 Constitution). That decision, however, was never appealed to the Court of Appeal, and therefore, the decision is not binding on this Court.

[11] At trial, the appellant was represented by a senior practitioner from the private bar. After the conclusion of the summing up, the appellant's trial counsel did not seek re-directions on the need to look for corroboration for the complainant's evidence. It is fair to conclude that by not seeking the re-directions, the appellant's trial counsel had accepted that the statutory and the common law requirement for corroboration for child witnesses had been abolished. On appeal, a new counsel is representing the appellant. No issue is taken on appeal regarding the competency of legal representation the appellant received at trial.

[12] By not seeking re-directions from the trial judge, the appellant has deprived himself of a pronouncement upon which he could have founded his ground of appeal to this Court. The ground of appeal raises the question whether the law requiring corroboration for child witnesses is constitutionally valid. It must be borne in mind that the appellant was tried during a period when there existed a constitutional vacuum in Fiji. Despite the existence of the constitutional vacuum, the fundamental rights of an accused were intact. The courts were functioning and the accused persons were accorded due process as observed by the Supreme Court in Tevita Nalawa v State unreported Criminal Appeal No. CAV 002 of 2009; 13 August 2010 at para [21]:

"Although Fiji has not had any Parliament for some years, the existing Government has shown its willingness to respect the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights by its passing of the Crimes Decree, 2009 which incorporates the International Covenant on Civil and Political Rights. The courts here have shown at all levels their respect for the rights of accused persons to a fair trial, that is a trial according to law. This includes the right to counsel, the right to disclosure, the right to adequate time and facilities in order to prepare a defence, the right to remain silent, and the right to trial without delay".

[13] On 7 September 2013, the constitutional vacuum ceased to exist when the Constitution of the Republic of Fiji (the Constitution) came into effect. The Constitution has incorporated a range of Bill of Rights consistent with Fiji's commitment to abide by various international conventions on human rights. Section 6(1) of the Constitution states that the Bill of Rights binds the judicial branches at all levels.

[14] The right to a fair trial is embedded in section 15(1) of the Constitution. Every accused charged with an offence must be accorded this right by the courts. The question is whether the appellant was denied his right to a fair trial when the trial judge directed the assessors that there was no requirement in law to look for corroboration for the complainant's evidence.

[15] The law on corroboration as it applies to evidence was developed mainly to deal with witnesses who were considered intrinsically unreliable. Accomplices, women and girls alleging sexual abuse and children generally fall into the category of witnesses whose evidence either required corroboration or a warning before the courts could convict an accused. Corroboration has a special meaning in law. When looking for corroboration, the courts are required to look for independent testimony which implicates the accused with the alleged crime (R v Baskerville [1910] UKLawRpKQB 109; (1910) 2 KB 658, Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 211).

[16] In the present case, there is no dispute that there is no independent evidence to connect the appellant to the alleged rape. The medical evidence supports the complainant's evidence of penetration but it does not implicate the appellant. The appellant was convicted on uncorroborated evidence of the complainant who was a child. Counsel for the State relies on A.V's case and submits that the trial judge's direction that that there was no need to look for corroboration for the complainant's evidence was in accordance with the law.

[17] In AV, the offender was convicted on uncorroborated evidence of a 4-year old child victim. The facts of that case were that the offender who lived next to the victim lured her to his house and raped her. Later on the same day, the victim complained to her aunty when she was bathing her. The victim was medically examined the next day. Medical examination revealed lacerations on her genitalia and her hymen was not intact. On his election, the offender was tried in the Magistrates' Court. The victim was called to give evidence. Before receiving her evidence, the trial Magistrate did not carry out a competency inquiry as was required by section 10 of the Juveniles Act Cap. 56. The trial Magistrate believed the victim's evidence and convicted the offender. The case was then transferred to the High Court for sentence. The High Court reviewed the correctness of the conviction and then sentenced the offender. In the course of the review, the High Court held that section 10 of the Juveniles Act Cap. 56 and the common law requirement for corroboration for child witnesses were unconstitutional under the equality before the law provision of the 1997 Constitution.

[18] Section 10 of the Juveniles Act Cap. 56 states:

Evidence of child of tender years

(1) Where in any proceedings against any person for any offence or in any civil proceedings any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may proceed not on oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of his evidence and to understand the duty of speaking the truth; and the evidence though not given on oath but otherwise taken and reduced into writing so as to comply with any law in force for the time being, shall be deemed to be a deposition within the meaning of any law so in force:

"Provided that where evidence is admitted by virtue of this section on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated."

[19] In A.V, the High Court noted that the Juveniles Act Cap. 56 was enacted in 1974 and the Act mirrored the Children and Young Person Act 1933 (UK). Section 10 of the Act applied to all court proceedings involving a child witness of a tender age. The phrase 'tender age' is not defined in the Act but section 2 states that a child is "a person who has not attained the age of fourteen years." Section 10 has two effects on child witnesses under the age of 14 years.

[20] Under section 10, the child witnesses under the age of 14 years are subject to a competency inquiry where the child is required to demonstrate an understanding of the nature and consequences of an oath. The oath test required children to express knowledge of the fact that they would be committing a sin and "burn in the fires of hell" if they lied on oath (R v Brasier (1779) 168 Eng. Rep. 202 (K.B.). If the child passes the oath test, the child is competent to give sworn evidence, but his or her evidence is still subjected to the common law warning.

[21] In the event, the child fails the oath test, the child is allowed to give unsworn evidence, but the child's evidence required corroboration and if there was none, the accused must be acquitted. The effects of section 10 were clearly explained by Shameem J in Agnu v State unreported Criminal Appeal No. HAA067 of 2008; 5 September 2008 at p5:

"The law on the evidence of children is that where a child gives unsworn evidence, corroboration is required as a matter of law. That means that without corroboration, a conviction is impossible. Where however a child gives sworn evidence, a corroboration warning should be given as a matter of practice on the basis that the evidence of children may be unreliable without some supporting evidence independent of the child and implicating the accused".

[22] In the past, a failure to conduct the competency inquiry or to give a warning in relation to the sworn evidence of a child witness has been held to be fatal to a conviction (Lal Khan (1981) 73 Cr App R 190, Fazal Mohammed v State (1990) 91 Cr App R 256, Suresh Chand v R Cr App No. 77/83Ltk, Kepueli Jitoko v State [1991] 37 FLR 14, Mohammed Salim Nur Khan v State Cr App No. HAA004 of 2008, Trigg [1963] 47 Cr. App. R.94)

[23] In A.V's case, the High Court considered the constitutionality of the statutory and the common law restrictions on the evidence of child witnesses under the equality before the law provision of the 1997 Constitution. A similar provision has been incorporated in the new Constitution. Section 26(1) of the Constitution states:

"Every person is equal before the law and has the right to equal protection, treatment and benefit of the law".

[24] Section 26(3) of the Constitution prohibits discrimination against a person on the ground of age. Section 26(4) of the Constitution states a law may not directly or indirectly impose a limitation or restriction on any person on a prohibited ground such as age. Section 26(7) states that treating one person differently from another on a prohibited ground is discrimination, unless it can be established that the discrimination is not unfair in the circumstances. Section 26(8) prescribes circumstances under which the right to equality and freedom from discrimination can be derogated but none of those circumstances apply to the evidence of children under the age of 14 years.

[25] It follows that treating the evidence of children under the age of 14 years differently is inconsistent with the right to equality and freedom from discrimination, unless it can be established that the discrimination is not unfair in the circumstances. A discriminatory law will survive a constitutional challenge if it exists to advance a legitimate purpose (Balkandali v UK EHRR 28/5/85 applied by Shameem J in State v Baleinabuli & Ors Cr Case No. HAC106/06) and adopted in A.V (supra) at para 15).

[26] The purpose of law requiring corroboration for child witnesses were explained by Lord Morris in DPP v Hester (1972) 57 Cr App R 212 at p 219 as follows:

"There are some suggestions which can readily be made, but which are only with more difficulty rebutted. There may in some cases be motives of self-interest, or of self-exculpation, or of vindictiveness. In some situations the straight line of truth is diverted by the influences of emotion or of hysteria or of alarm or of remorse. Sometimes it may be that owing to immaturity or perhaps to lively imaginative gifts there is no true appreciation of the gulf that separates truth from falsehood."

[27] However, it is now recognized that the restrictions placed by the law on children's evidence does not advance a legitimate purpose, especially in the criminal proceedings where children are victims of crime. Many jurisdictions have removed such restrictions by bringing legislative reforms. Unfortunately, while the corroboration rule in sexual offence cases has been abolished by section 129 of the Criminal Procedure Decree 2009, the competency inquiry and the corroboration rule which applied to child witnesses were not subject of any statutory reform.

[28] In England, the presumption of incompetence which applied to children of tender age was removed by section 52 of the Criminal Justice Act 1991. The English Criminal Justice Act 1991 further permits children to give unsworn evidence in criminal proceedings and to substitute a pre-recorded interview with a child victim for his or her evidence in chief in child abuse cases. When a child witness is called to give evidence, the trial judge instead of conducting an inquiry, is required to remind the child in the presence of the jury, of the importance of telling the truth, along the following lines: "Tell us all you can remember of what happened. Don't make anything up or leave anything out. This is very important" ( A.V v State (supra) at para. [27]).

[29] Similarly in Canada, the statutory rule that the unsworn evidence of a child needed to be corroborated was abolished by statute, although some judges continued to apply the common law warning rule, advising juries about the inherent frailty of the testimony of children, whether sworn or unsworn. Subsequently, in R. v W.(R.) [1992] 2 S.C.R 122 the Canadian Supreme Court revisited the issue and rejected the stereotypical views about child witnesses by alluding to the growing body of psychological literature on the reliability and perceptions of children. McLachlin J stated at 134:

"It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards-to do so would be to create new stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate."

[30] The international jurisprudence clearly recognizes that the laws about child witnesses being inherently unreliable witnesses were based on the prevailing social and legal myths of the late nineteenth century. As the High Court stated in A.V's case at paragraphs [33]-[34] and [36]:

[33] Section 10 of the Juveniles Act is clearly based on myths and stereotypes about children, that is, they fabricate stories based on ulterior motives. The requirement for a preliminary investigation into the child's competence before the child can testify is to justify the need for corroboration or a warning if the child's evidence is to be accepted. In my view, myths and stereotypes have no place in a rational system of law, as they jeopardize the courts' truth-finding function. The belief that children fabricate stories based on ulterior motives and are therefore less capable of belief is not supported by judicial experience or social science research. I cannot find any rationale for discriminating against children who are subjected to the restrictions imposed by s.10 of the Juveniles Act. The impact of the discrimination has been grossly unjust to children who were violated but denied access to justice. Due process is not a concept that is only available to an accused. Due process is also available to the victims of crime.

[34] Children below the age of 14 years are the most vulnerable victims, and therefore, the need for protection of law is greater. A law that prohibits prosecution and conviction of persons, who commit crime against children regardless of their age, deprives the children due process of law. Such law has no place in our criminal justice system. This interpretation is consistent with the Convention on the Rights of the Child which Fiji ratified in 1993. By ratifying the Convention, the State is obliged to take all appropriate legislative measures to protect the children of this country from all forms of physical or mental violence, injury or abuse, or exploitation or sexual abuse. The Convention also allows for judicial involvement to carry out the protective measures for children.

...

[36]If a child of a tender age appears in court as a witness, the only obligation the magistrate or the judge has is to remind the child of the importance of telling the truth before receiving his or her evidence and that evidence should be assessed like the evidence of any other witness without the need for corroboration or a warning."

[31] We endorse the above remarks. Every child in Fiji now has a constitutional right to be protected from abuse or any form of violence. This right is expressly provided by section 41 (1) (d) of the Constitution. Rape is the worst kind of sexual abuse that can be inflicted on a child. The courts have a constitutional duty to protect the children from any form of sexual abuse by taking into consideration matters that are in their best interests. Section 41 (2) of the Constitution states:

"The best interests of a child are the primary consideration in every matter concerning the child."

[32] In our judgment, any law that restricts child victims of sexual abuse or violence from testifying about their victimization cannot be regarded as being in the child's best interests and is inconsistent with the children's right to equality before the law. There is a growing recognition that child sexual abuse is often perpetrated by family members, close family friends or trusted community figures. In these circumstances, corroboration, that is, independent evidence implicating the accused to the alleged sexual abuse will rarely exist. The competency inquiry and the requirement for corroboration for child witnesses have no legitimate purpose in criminal proceedings involving children as victims of sexual abuse. Both the competency inquiry and requirement for corroboration for child witnesses in criminal proceedings are invalid under section 2(2) of the Constitution.

[33] The examination of whether the appellant's right to a fair trial has been infringed must involve multifaceted considerations, such as the rights of victims, in this case child, the rights of accused and court's duty to ascertain the truth (R v Levogiannis [1993] 4 R.C.S. 475 at 483). In the present case, the appellant was accorded due process before he was convicted on the victim's testimony. We conclude that the trial judge's decision to disregard section 10 of the Juveniles Act Cap. 56 and the common law warning for the evidence of the child victim did not breach the appellant's constitutional right to a fair trial. This ground of appeal fails.

Witness with an interest
[34] Grounds two and three relates to the trial judge's directions on Parwati Nair's evidence. The appellant's contention is that the trial judge misdirected on Nair's evidence and the misdirection was prejudicial to the defence case. The objectionable direction is contained at para 40 of the summing up:

"In deciding on the evidence of Parwati, you may consider whether a lady of her age could remember minute details such as date of Nitya's coming into her house on rent. You may also consider whether she was an interested witness".

[35] Counsel for the appellant submits that there was no evidence that Nair's memory was impaired by her age or that she was an interested witness. According to the court record, Nair was 76 years old when she gave evidence. She did say that she could not recall the exact date when the complainant's family moved in her flat but from memory she recalled it was a Saturday. Apart from feeding the complainant and her sister lunch when their parents had gone away to buy groceries, she did not express any interest in the case requiring the trial judge to give directions that she was a witness with an interest (see, R v Beck (1982) 74 Cr App R 221; R v Gibb and McKenzie [1983] VicRp 78; [1983] 2 VR 155).

[36] We conclude that the trial judge misdirected on Nair's evidence. It is rather unfortunate that counsel for the appellant at the trial did not seek re-directions to correct the error. As the Supreme Court stated in Anand Abhay Raj v The State unreported Criminal Appeal No. CAV0003 of 2014; 20 August 2014 at para. [35]:

"The raising of direction matters in this way is a useful trial function and in following it, counsel assist in achieving a fair trial. In doing so they act in their client's interest. The appellate courts will not look favourably on cases where counsel have held their seats, hoping for an appeal point, when issues in direction should have been raised with the judge." (per Gates CJ).

[37] The appellant's evidence was that he did not have access to the complainant in order to rape her. He relied on Nair's evidence to support his defence. However, Nair's evidence was vague. Nair agreed that she gave the complainant and her younger sister lunch when their parents went shopping, but she did not say that the complainant was in her care at all times and that the appellant did not have access to her when her parents were away.

[38] The real issue for the trial court was whether the complainant was telling the truth when she said the appellant penetrated her vagina with his penis when her parents were not home. Medical evidence of ruptured hymen supported the complainant's evidence of penetration. The assessors and the trial judge believed the complainant. That finding was available on the evidence and there is no reasonable ground to disturb the finding of credibility of a child witness by the trial court on an appeal.

[39] We are satisfied that the misdirection on Nair's evidence has not caused substantial miscarriage of justice to allow the appeal under section 23(1) of the Court of Appeal Act, Cap. 12.

Result
[40] For the reasons given, I would confirm the conviction and dismiss the appeal.

Order of the Court:
Appeal against conviction is dismissed.

Hon. Justice W. Calanchini
President, Court of Appeal

Hon. Justice E. Basnayake
Justice of Appeal

Hon. Justice D. Goundar
Justice of Appeal