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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[ON APPEAL FROM THE HIGH COURT]
Criminal Appeal No. AAU 070 of 2012
(High Court Case No. HAC 032 of 2010)
BETWEEN:
TAINELA KARURU
Appellant
AND:
THE STATE
Respondent
Coram : Gamalath, JA
Prematilaka, JA
Bandara, JA
Counsel: Mr. S. Waqainabete for the Appellant
Mr. S. Babitu and Ms. R. Uce for the Respondent
Date of Hearing: 12 November 2019
Date of Judgment: 28 November 2019
JUDGMENT
Gamalath, JA
[1] I have read the draft judgment of Bandara, JA and I agree with the conclusions contained therein.
Prematilaka, JA
[2] I have read in draft the judgment of Bandara, JA and agree with his conclusions and orders.
Bandara, JA
[3] The Appellant was charged with Rape punishable under Section 207(1) (2) (a) of the Crimes Decree.
[4] At the conclusion of the trial the assessors unanimously found the Appellant guilty. The learned High Court Judge concurred with the assessors’ decision and convicted the Appellant as charged.
[5] At the trial the accused has given evidence stating that the sexual act in question was consensual.
Facts of the case
[5] At the time of the incident, the virtual complainant ‘SRS’ who was above the age of 18 was living at Yasawa island. On 16/8/2010, she had made a visit to her uncle Solo’s place at Natokawaqa, Lautoka to attend a funeral. Around 7.00 pm she had been walking from Tomuka to Natokawaqa along with Maria Ruci and her grandmother, Lanieta. They had had dinner at Solo’s house.
[6] At about 9.00 to 10.00 pm, the complainant walked towards Nadovu along with Ruci Maria and two girls both bore the same name as Lusi. Having gone to the town, Maria and one of the two Lusi’s wanted to go to the nightclub known as ‘Hunter’s Night Club’. The other Lusi and the complainant remained outside. There the complainant met a friend, a boy by the name of Vitogo and chatted with him for some time. When Vitogo decided to leave she accompanied him up to the multipurpose shop and returned. When the complainant returned, Lusie was not at the place where she was. Having thought that the other girls had already left, the complainant walked back along the same route they came. The time would have been around 12.00 midnight. When the complainant walked through Drasa Avenue and went past the FSC gate, she was shocked to hear someone called her “gang”.
[7] When the complainant looked back she saw the appellant standing behind her. He had told the complainant that he wanted her. Thereafter, the appellant had punched her and she had fallen down. The appellant then dragged her towards a drain, kept on punching her and held on to her neck. When the complainant tried to shout the appellant had blocked her mouth with a piece of cloth. The complainant struggled to get herself freed, tore the shirt worn by the Appellant and the latter hit her face with a stone. The Appellant proceeded to punch her thighs, removed her clothes and proceeded to have sexual intercourse with her forcibly without her consent.
[8] When the offence was being committed, a man walked down the road towards them, whereupon the Appellant put on his pants and ran away. The complainant then stood up and put on her clothes and told the man, who came down the road, of the incident. The man took her back to Natokawaqa.
[9] According to the evidence of the doctor who examined the complainant:
(1) The complainant was examined on 17/4/2010 at 5.45 am.
(2) The complainant stated to the doctor that, “she was attacked and hit on the face many times before being raped by the attacker, about 3 hours after. She was attacked with a stone”.
(3) At the time of the medical examination, the complainant had been in a state of shock; her clothes were dirty and had obvious injuries on the face. She could not talk properly and was trembling.
(4) The doctor further observed the following injuries on the complainant:
- (i) Multiple bruises on the face;
- (ii) Swelling on her left side jaw;
- (iii) Multiple laceration on her legs;
- (iv) Laceration on the scalp;
- (v) Sub conjectural haemorrhea (eyes)
- (vi) Laceration on the vault of the vagina;
- (vii) Semen couldn’t be seen since there was a lot of blood on the vagina.
[10] The following questions that were put to the doctor in cross-examination and the answers given thereto are worth mentioning. (Page 158 of the court proceedings)
VT : You said there is a vaginal tear and some force used. Is it possible a force
was in a form of vigorous sexual intercourse?
PW6 : Unlikely.
PW6 : Unlikely.
PW6 : I say it is both assault and rape.
[11] Regarding the subsequent conduct of the Appellant and his arrest the investigating officer testified that;
“We made a few rounds in the area; we met the suspect walking along Sukanaivalu road. As we came near, he saw us and he started running towards the short cut to his house. We ran after him and he was arrested.
Evidence of the Appellant
[12] At the trial, the counsel for the Appellant just prior to calling the accused to the witness box to give evidence, informed court that, “our defence is that the victim gave consent”. (pg 167 of the court proceedings)
[13] The appellant giving evidence on oath before the High Court had stated that, he made an appointment with the complainant (whom he had known before) over the phone to meet her in town in the afternoon. Having met in town, both of them had gone to the Hunters Night Club where he had a few bottles of beer, and the complainant had some juice. They had come out of the night club after 10.00 pm and had been talking under a tree until 12 midnight waiting for her friends.
[14] Since her friends did not turn up, they decided to leave. On the way the Appellant had asked whether they could talk at the central ground. Having gone there they had started talking under a tree for the second time. Thereafter both of them had had consensual sex.
[15] In an attempt to explain how the complainant came by her injuries, the Appellant stated in his testimony; (page 168 of the court proceedings)
VT : After you had consensual sex what happened after?
Accused : We came towards the roundabout we walk towards Nadovu
park along the same road we were planning to go towards
Natokawaqa.
VT : Anything else happened?
Accused : She get angry with me and swearing at my father.
VT : What did you tell her to get angry?
Accused : I was asking about other boyfriends and pushed her around
she got angry.
VT : When she got angry, what happened next?
Accused : When we reached FSC compound, I was still drunk. I
punched her mouth and she fell on the gravel walkway.
VT : What made you to punch her?
Accused : She swore at my parents which I did not like.
VT : What happened next?
Accused : She fell on the ground. I picked her up she hugged me. We
kept on walking towards the shop at Nadovu Park.
[16] It appears, not surprisingly, that the High Court judge or the assessors had not believed the flimsy ground which had enraged the complainant to swear at the parents of the Appellant.
Ground of appeal against conviction
[17] Now I turn to consider the ground of appeal on conviction advanced on behalf of the Appellant:
(a) That the learned Trial Judge erred in law and in fact by allowing the state to use the Appellant’s caution interview statement before the assessors to contradict the appellant’s evidence whereas the caution interview statement was already excluded, as a result the same was before the assessors in which the appellant confessed to the offence under police brutality.
[18] The court proceedings do not indicate that there had been a voire dire inquiry held, at any stage of the trial, to make a ruling on the admissibility of a (confessionary) caution interview.
[19] In Ajodha v The State [1982] AC 204 the admissibility of the common law procedure of a confession which was to be challenged was laid down as follows:
(a) The defence advocates would notify the prosecutor that an objection to admissibility was to be raised;
(b) The prosecutor would then refrain from mentioning the statement in opening to the jury;
(c) At the appropriate time the judge would conduct a trial on the voir dire to decide on the admissibility of the statement.
[20] In view of the above ground of appeal against conviction and the above rule of common law, it is pertinent to note all the references made in the entire court proceedings relating to a voire dire or a ‘caution interview’.
[21] Proceedings on 5/10/2010;
The appellant appearing in person had stated in court as follows:
“Accused: I was forced to give the answers. It...at back. They rubbed chillies on my private front and back. Punched on head and ribs. Got injuries. Not taken for medical. Swollen left leg. Injuries below right eye. They hit my leg with stones. Strike back team – can recall only 2 officers. Statement taken – he was forcing me to say yes. He punched. The witness – he also forcing, he dictated answers”.
[22] Proceedings on 28/10/2010;
Mr. T. Terere (as duty solicitor) for the accused.
“T.Terere: He has applied for Legal Aid Commission.
There is a confession and need to obtain further instructions.
On 1/12/12010 –
T. Terere: confession likely to be challenged.
On 16/2/2011
T. Terere: We will file grounds of voir dire. Trial grounds against voir dire to
be filed today.
[23] Proceedings on 31/3/2011;
T. Terere: I will give state the ground of Voir Dire this week (giving now)
16/9/2011
Mr Qica for State
S. Qica – ready for trial. About 7 witnesses plus voir Dire grounds filed.
[24] Proceedings on 5/6/2012;
Just prior to Appellant was called to give evidence the defence counsel had informed court that;
- our defence is the victim gave consent.
- the statement made to the police was under the influence of liquor.
[25] Accordingly, the court proceedings do not indicate that a voir dire inquiry had been held to decide the admissibility of the caution interview of the Appellant and at no stage the trial Judge had made any ruling admitting or rejecting the caution interview.
[26] In the circumstance, what is stated on the ground of appeal as;
“whereas the caution interview statement was already excluded” ...is factually incorrect. There is nothing to indicate in the court proceedings to say that the caution interview statement was excluded at any stage.
[27] The portions of the caution interview with which the Appellant was confronted in the
course of the cross examination by the State is worthy of consideration. (Page 173 of the court proceedings)
State counsel : you said you were at Hunters Inn with Siliva?
Accused : yes.
State counsel : To the Police at Q 48 & A.
Q48 : Why didn’t you meet PCX?
Accused : Whilst I was riding in the van past FSC gate, I saw a girl
walking alone on the road towards Nadovu grounds, so I thought it was the girl we were drinking together.
State counsel : That means you lie to the Police?
Accused : I was forced and I made up stories, they rub chillies on my eyes,
private parts, my anus and my mouth.
State Counsel : You said you lied to Police?
Accused : Because of the assault I made up stories to the Police.
State Counsel : You told this to the Police?
Accused : I told this to the Police but I made it up.
.... (Page 174 of the court proceedings)
State Counsel : Q 52(a) what happened when you met the girl when she was
coming down.
Accused : I saw it was a different girl so I thought of raping her.
State Counsel : Did you tell this to the Police?
Accused : No.
...
State Counsel : I put it to you, you never met Siliva because she never went in to
the night club?
Accused : I met her outside, I took her inside.
State Counsel : Q 52(b) Did you tell her anything?
Accused : I took hold of her hand and told her that I wanted her that I am
from Macuata and asked her ‘where she was from’?
State Counsel : Q53. what happened after you questioned her?
Accused : She told me that she did not want me so I pulled her down until she
was lying down and kept punching her.
Accused : I was forced and threatened by the Police so I gave the statement.
[28] Archibald states that (pp 15-457; 2018 edition)...“If the challenge of the admissibility of the confession succeeds, the trial continues without the evidence of the confession. If the challenge fails the prosecution’s evidence of the confession and the circumstances in which it was obtained will be given in the presence of the jury.”
[29] However, in the instant case the caution interview of the Appellant had not been admitted nor had there been a voire dire inquiry to decide its admissibility. Moreover, from the above line of the cross examination of the state counsel it is clear that the intention of the State had not been to use the said portions as substantive evidence to show that the accused had admitted guilt. But the State has merely tried to attack the credibility of the Appellant by demonstrating the inconsistencies of the evidence before the trial court and previously made statement to the Police. Using a statement made to the Police by an accused for the said purpose is not obnoxious to the law and common law has provided for such procedure.
[30] In Ram v State [2012] FJSC 12; CAV001.2011 (9 May 2012), the Supreme Court had stated the following at para 60 of the judgment;
“[60] It is also consistent with the principle of common law as expressed by Lord Parker CJ in Regina v Gelder [1960 1 W L R 1 1169 at page 1172 that “When a witness is shown to have previous statements inconsistent with the evidence given by that witness at the trial. The jury should be directed that the evidence given at that trial should be regarded as unreliable.” There may be exceptional circumstances in which the testimony of such a witness may be regarded as reliable notwithstanding the prior inconsistent statement, such as where the witness is able to give a convincing explanation for the inconsistency, and it is also noteworthy that in Regina v. Governor of Pentonville Prison. ex P. Alves [1993] 284 AC 284 Lord Geff of Chieveley with whom the other law Lords agreed, “stressed that the credibility of evidence given by a witness inconsistent with a statement previously made” was a matter for the jury to consider subject to a proper warning by the judge as to the weight to be attached to the evidence.
[31] Furthermore, in his summing up the learned High Court Judge had strongly directed the assessors not to consider the marked portions of the Appellant’s statement made to the police as substantive evidence of the case (at paragraph 33) as follows:-
“33. The statement to the police is not before the court and it is not evidence. The state counsel used certain portion of the evidence to check the credibility of the accused and nothing else. What he told Police is not evidence before you. I want you to not consider the statement as evidence”.
[32] Directing himself by his own summing up, in his judgment at paragraph 5 the learned trial Judge states that:
“5. I have reviewed the evidence called in the trial and I direct myself in accordance with the summing up I gave the assessors yesterday. I find the verdict of the assessors were not perverse... I accept the verdict.”
[33] In view of the above, it is clear that the Learned High Court Judge had not considered the impugned portions of the statement made to the Police as substantive evidence of the case.
[34] The same has been used to demonstrate that the accused had made inconsistent statements which place his credibility as a witness in doubt.
[35] As considered above, overwhelming direct and circumstantial evidence against the Appellant, proves his guilt beyond reasonable doubt and the complainant’s evidence which has been well corroborated in vital aspects by medical evidence, stands completely unimpeached.
[36] In the circumstances there appears to be no miscarriage of justice caused to the appellant by the High Court’s decision to allow the state to use confessionary portions of his statement to the police to contradict his testimony. Hence, it is appropriate to dismiss the appeal against the conviction.
Appeal against Sentence:
[37] The Appellant had submitted the following grounds for his appeal against the sentence:
(a) Time in custody before the trial;
(b) Double counting of aggravating factors;
(c) Sentence was harsh and excessive in all circumstances of the case;
(d) Commencement of sentence; and
(e) Consecutive and concurrent sentence
[38] At the outset it must be stated that grounds (a) and (e) have merits and to that extent the sentence appeal succeeds.
[39] It is well settled law that the tariff for the offence of adult Rape is between 7 years to 15
years imprisonment. Taking into consideration the nature of the offence the Learned High Court Judge had taken 10 years as the starting point and had added 8 years for the above aggravating factors. Thereafter the Learned High Court Judge had reduced 3 years from the sentence having taken into consideration the mitigating factors.
Ground A - Time in custody before Trial
[40] The Appellant had been in remand custody for the offence in question for a period of nearly 7 months from 20th April 2010 to 28th November 2010.
[41] The Learned High Court Judge had obviously fallen into error when he did not consider
the time that the Appellant spent in remand.
[42] In the circumstances, I would order that the said period of 7 months be deducted from the total period of 15 years sentence of the present conviction.
Ground B – Double counting of Aggravating Factors
[43] In relation to ground (b) it is pertinent to note the following aggravating factors taken into consideration by the High Court Judge.
The victim was an 18 year old girl.
(a) She was a virgin.
(b) You punched her on the face.
(c) You assaulted her with a stone on her face.
(d) Victim was severely injured and hospitalized.
(e) The vagina of the victim was torn and the Doctors had to stitch the
Injuries.
(f) The victim was traumatized (even at the time of giving evidence.)
(g) You were under the influence of alcohol.
Perhaps (c) & (d) and (e) & (f) should have been considered as two factors instead of four. To that extent they amount to double counting. However, I am of the view that the ultimate sentence of 15 years meets the ends of justice. There is no reason to interfere with it.
Ground C – Sentence was harsh and excessive
[44] The circumstances of the rape were horrendous therefore the sentence is not harsh and excessive.
Ground E – Consecutive and Concurrent sentence
[45] As indicated on page 43 of the court proceedings at the time of the conviction of the present case, the Appellant had been serving a sentence of 18 months for a conviction for a first count of Burglary, and 9 months for a second count of Theft which was made concurrent to the first count.
[46] In addition, the Appellant had been on a suspended term when he committed the Burglary conviction. He had to serve a total of 21 months for the above conviction.
[47] Having regard to the above the Learned High Court Judge in his sentencing order dated
13/6/2016 makes the following order, making the sentence of the present case to run consecutive to the aforesaid sentence of the other cases.
[48] In his sentence order, the learned High Court Judge had remarked the following at para
14:
“14. I am informed that you are serving a sentence at present. I order to implement this sentence consecutive to your present sentence.”
Section 22(1) of the Sentencing and Penalties Decree reads as follows:-
“22 – (1) subject to sub-section (2) every term of imprisonment imposed on person by a Court must, unless otherwise directed by the court, be served concurrently with any incompleted sentence or sentences of imprisonment.”
[49] However, the Learned High Court Judge had failed to give any reasons for his above
Order.
[50] In the circumstances, I would quash the Learned High Court Judge’s above order and
make a fresh order that the sentence of the present case should run concurrently to the prison sentences the Appellant was serving as at 13/6/2012.
The Orders of the Court:
Hon. Justice S. Gamalath
JUSTICE OF APPEAL
Hon. Justice C. Prematilaka
JUSTICE OF APPEAL
Hon. Justice N. Bandara
JUSTICE OF APPEAL
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