Doughty v State [2019] FJCA 259; AAU043.2014 (28 November 2019)

IN THE COURT OF APPEAL, FIJI
[ON APPEAL FROM THE HIGH COURT]

Criminal Appeal No. AAU 043 of 2014
(High Court Case No. HAC 183 of 2011)

BETWEEN:

JOHN DOUGHTY
Appellant

AND:

THE STATE
Respondent

Coram: Gamalath, JA
Prematilaka, JA
Bandara, JA

Counsel: Mr. S. Waqainabete for the Appellant
Ms. W. Elo for the Respondent

Date of Hearing: 13 November 2019
Date of Judgment: 28 November 2019

JUDGMENT

Gamalath, JA
[1] I have read in draft the judgment and the conclusion as set out by Bandar JA and I agree
with them.

Prematilaka, JA
[2] I have read in draft the judgment of Bandara JA and agree with the conclusions and
orders proposed.

Bandara, JA

[3] The appellant had been charged with a count of rape contrary to section 207(1) and (2) (a) of the Crimes Act 2009. On 17/2/2014 the assessors unanimously found the accused guilty of the charge and the learned High Court Judge concurred with their decision. On 17^th February 2014, the appellant was convicted on the said charge of rape.

[4] On the 25^th of February 2014, the appellant was sentenced to a term of 8 years imprisonment with a non-parole period of 7 years.

[5] The High Court further ordered that the Appellant be subject to a permanent domestic violence restraining order in favour of the complainant.

[6] He makes a timely appeal.

[7] The leave to appeal against the conviction has been granted on the following ground by a single Justice of Appeal:

“That the learned trial Judge erred in law and in fact when he allowed the complainant during the trial to identify the Appellant in the witness box without a prior foundation of identity parade or photographic identification.”

[8] During the arguments at the hearing of this appeal before us, the counsel for the appellant did not strenuously press the above ground of appeal knowing fully well the inherent weakness of the same as against the weight of the evidence at trial. Instead the learned counsel stretched the issue of identification to a new direction by drawing the attention of the court to the following excerpts of the complainant’s testimony. Thereby the counsel attempted to bring home the fact that since the complainant had double visions due to drunkenness, she would not have properly identified the culprit.

Q: You said you were dizzy?

A: Yes

Q: when you open your eyes, world was spinning?

A: Yes

Q: Were you seeing double images?

A: Yes

[10] This court is not inclined to permit or encourage the defence to introduce new grounds of Appeal at the hearing stage. In Rokete v The State; AAU 009.2014; (7 March 2019), FJCA 49; where the Court of Appeal reiterated the observations of the Supreme Court in Tuwai v State; CAV 0013.2015; 26 August 2016, FJSC 35; where it was held at para 82.

“It is improper that litigants be allowed to argue their cases on piece meal basis. Once a set of appeal grounds are unsuccessful, they raise another set of test whether that will hold some substance. If stringent rules are not applied where necessary there will never be an end to the litigation and there can be huge disruptions to case management in the appellate court. However, the court gave a hearing to the said ground in the interests of justice as it further stretched a point pertaining to the issue of identification”.

[11] Having regard to the above mentioned portion of evidence, I would hold that no doubt arises in relation to the identity of the culprit which in no uncertain terms have been proved beyond reasonable doubt. If the complainant had double visions at the time of the commission of the offence, it would well have seen the double vision of the same person who committed the offence on her. No contrary position has been suggested to the complainant by the defence in the course of cross examination.

[12] The learned High Court Judge had given the following direction to the assessors which is appropriate in relation to the significance of the issue of identity.

“24. Apart from the elements of the offence, the identity of the person who alleged to have committed the offence is very important. There must be positive evidence beyond reasonable doubt on identification of the accused person and connect him to the offence that was alleged to have been committed.

Evidence that the accused had been identified by a witness as doing something when disputed by the accused, be approached with special caution because experience has demonstrated honest witnesses have given identification which have been proved to be unreliable. I give you this warning because, I have formed any view of the evidence but the law requires that in every case where identification evidence is involved that the warning be given”.

[13] In assessing the identification evidence you must take the following matters into account:

(i) Whether the witness has known the accused earlier?

(ii) For how long did the witness have the accused under observation and from

what distance?

(iii) Did the witness have any special reason to remember?

(iv) In what light was the observation made?

(v) Whether there was any obstacle to obstruct the view?

[14] By giving the above directions, the learned High Court Judge had adequately alerted the assessors on the significance of establishing the identity of the culprit.

The salient facts of the matter

[15] The complainant ‘AD’ was aged 25 at the time she testified before the High Court. At the time of the incident she was staying at her aunt’s house in Vunavutu, Lautoka and was working as a hair dresser at the latter’s salon.

[16] On the day in question (6/9/2011), the complainant having finished her work at the hair salon, had come to her aunt’s home around 7.00 pm along with her cousin, Litia Virisine. When she came home, she saw Samu, Hara and John (the appellant) drinking rum in the verandah. The only alcohol the complainant used to drink was beer.

[17] There had been 6 bottles of beer in the fridge at the time. Around 8 pm in the night, the bottles of beer were finished. Thereupon the appellant got ready to go to the shop called ‘Friendly store’ in order to get another 4 bottles of beer. Litia, Samu and the complainant had joined the Appellant. Beer had been bought by the Appellant at the ‘Friendly Store’ and the second drinking session which preceded the incident of rape took place beside the store at the road adjoining an Indian compound. The accused started serving beer to the complainant in a glass and when she drank it she felt dizzy and weak.

[18] The Appellant was previously a known person to the complainant, being one of her aunt’s adopted sons. This fact becomes important when the ground of appeal is taken into consideration.

[19] The complainant had lost consciousness after consuming the beer served to her by the Appellant.

[20] When she regained consciousness she found herself lying beside a driveway near a bush. She saw the accused standing in front of her. She had felt very weak and the Appellant punching her thighs. Thereafter the Appellant dragged the complainant inside the bushes and told her to be quiet. Though she wanted to run, she couldn’t do so due to the weakness of the body she was experiencing. Thereafter the Appellant laid her on the ground and removed all her clothes and had sexual intercourse with her without her consent. He had dragged her for a distance of about 12 feet.

[21] In the course of the cross-examination, the complainant had denied the suggestion made to her that she drank rum offered by the appellant.

[22] Initially, six bottles of beer had been consumed by the group and thereafter another 4 bottles had been brought in. The complainant had stated that she felt dizzy after consuming 4 glasses of beer. The following questions and answers in the cross examination are worthy of note in this regard:

Q: Did you pass out?

A: My body was weak and I lie down.

Q: When you lay down did you to go to sleep?

A: My body was sick and I did feel sleepy.

[23] Just prior to being raped, she was experiencing the following feelings:

Q: When you opened your eyes world was spinning?

A: Yes

Q: Were you seeing double images?

A: Yes.

She had categorically denied the suggestion made to her that she did not know for sure who raped her that night?

[24] Witness, Samuela Laro (Samu) had stated in his testimony that after the last 4 bottles of beer were brought in, he had started to serve them. The appellant had then grabbed the glass, and had started to serve the beer himself. After the appellant served the beer, he observed a change in the behaviour of the complainant. The complainant passed out and the appellant told them that he would take the complainant home.

[25] Thereupon the witness (Samu) had followed the Appellant and the complainant up to the point of the gate of Hara’s house, and thereafter had returned to the place where they were drinking. After about half an hour, the appellant had returned and told them that the complainant was at home. It is apparent from the evidence of this witness that after leaving the drinking party, the complainant had been seen last in the company of the Appellant. The witness had further denied the suggestion made to him in cross examination that the complainant consumed a glass of rum.

[26] Dr. Devi Dass had testified that she examined the complainant on 9/9/2011 around 11.00 am. At the time of the examination, she had observed that the complainant was in fear. The doctor further observed bruises on knees interior and on front, neck, thighs and vaginal walls were edematous swollen. The doctor had expressed the opinion that the vaginal injury could have been caused by blunt force due to penetration with blunt object like a penis. The bruises on thighs could have been caused by constant blunt pressure and could have been caused due to punches on thighs. Injury on the neck could also have been caused by blunt pressure. The injuries could have been caused within 12 hours of her examination.

[27] The doctor had stated in the cross examination that the bruises to the front of knees could have been caused due to falling or dragging.

[28] Witness, Virisine Laca had testified that on 6/9/11, when she came home at around 5.30 pm she had seen that John, Hara, Samu and Tracey were drinking beer under the mango tree. Litia and the complainant had come home around 6.30 pm. She has asked Litia to cook the dinner and the complainant to wash the dishes. She had not joined the drinking party and watched television. In the late night around 12.00 am or 1.00 am, the Appellant had come home sweating and looking exhausted. When the witness asked about the girls, the Appellant had stated that he did not know where they were.

[29] On 7/9/2011, the girls had been at home and the witness had observed that the complainant was not herself and not normal. Litia told Virisine of the incident. When the latter questioned the complainant about it she revealed what had happened. Thereupon the witness insisted that the matter be reported to the Police.

[30] The investigating Police officer had testified that he had recovered a chain and a pair of slippers that belonged to the complainant from the scene of the crime which was about 50 meters away from the complainant’s house. The Police Officer had further observed injuries on the complainant.

[31] Witness Litia’s testimony provides vital links to corroborate the narration of events of the complainant. The witness lived along with the Appellant and the complainant at her aunt, Virisine’s house. Appellant was a cousin of the witness from her mother’s side. On the day of the incident, she had come home from work along with the complainant around 7 pm. When they came home, Hara, Samu and the Appellant were drinking rum under the mango tree. After some time, the males had gone to a nearby store to buy four bottles of beer. The complainant and witness had also joined them and had drunk beer sitting near the store.

[32] Most significantly Litia had witnessed, after the 4 bottles of beer was brought, the appellant “pounding” something in a white piece of cloth. In her own words she had stated thus: “I saw John pounding something in a white piece of cloth. When I saw him, he was shocked and put that white piece of cloth inside his pocket.”

[33] When Samu started to serve beer, the appellant told him to give him the glass and the bottle for him to do the serving. It was when the Appellant started serving the beer the complainant passed out. She lied down on the appellant’s lap. When Litia tried to take the complainant home, the Appellant insisted to do that. Litia trusted the Appellant and allowed him to take the complainant home.

[34] Litia remained at the store and proceeded to finish her beer. When the witness reached home having finished the beer, she did not find the complainant there.

[35] The next morning when the witness asked the Appellant where the complainant was, he had told her that her boyfriend had taken her. When the witness woke up around 7 am, the complainant was not at home. She then saw the complainant standing outside appearing in a state of shock, with bruises on her neck and dirt on her hair, just looking around. When the complainant and the witness went to work the latter observed that the complainant kept sitting, and looking around without doing any work.

[36] When they came back home she asked the complainant what happened, and the complainant disclosed the incident of rape to her. Both of them had gone to the police to report the incident. The complainant had been the only person who passed out during the drinking party at the store.

Evidence of the Appellant

[37] The Appellant gave evidence on oath and totally denied having sexual intercourse with the complainant. He had stated that whilst the drinking session was going on, Samu had sent him to an Indian man who was staying at the house beside the shop, and ask for a Fijian medicine by the name of ‘ohe’. The fact that a medicine was mixed with the beer had never been brought to the notice of the complainant in the course of her cross-examination.

[38] According to the appellant it had been Samu who suggested to get ‘ohe’ medicine from the Indian man’s shop:-

Q: When you started drinking, anything happened?

A: Samu sent me to an Indian man staying at the house beside the shop, and

ask for ‘ohe’ a Fijian medicine.

[39] The appellant had further testified that it was Samu who mixed the medicine with the beer stating:

Q: Who mixed the medicine?

A: Samu

[40] However, the above stance taken up by the accused had never been suggested to Samu when he gave evidence. The appellant had agreed to the suggestion that the medicine ‘ohe’ had the after effects of sleeping pills.

[41] The overwhelming direct and circumstantial evidence discussed above proves beyond reasonable doubt that the accused premeditated the rape by mixing an intoxicant to the complainant’s drink which made the complainant’s body weak. No doubt, whatsoever arises as to the identity of the Appellant as the perpetrator of the offence of rape committed on the complainant.

[42] Having regard to the above, the appeal against the conviction of the Appellant is dismissed.

[43] There is no appeal against the sentence.

The Orders of the Court:

1. The appeal against the conviction is dismissed.
2. The conviction of the Appellant is affirmed.
   

Hon. Justice S. Gamalath

JUSTICE OF APPEAL

Hon. Justice C. Prematilaka

JUSTICE OF APPEAL

Hon. Justice N. Bandara

JUSTICE OF APPEAL