State v Mow [2020] FJCA 199; AAU0024.2018 (12 October 2020)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO.AAU 0024 of 2018

[High Court Suva Criminal Case No. HAC 25 of 2017]

BETWEEN : STATE

Appellant

AND : MANIYAU MOW

Respondent

Coram : Prematilaka, JA

Counsel : Ms. P. Madanavosa for the Appellant

: Ms. S. Nasedra for the Respondent

Date of Hearing : 09 October 2020

Date of Ruling : 12 October 2020

RULING

[1] The respondent had been charged in the High Court of Suva on a single count of rape committed at Nasinu in the Central Division contrary to section 207(1) and (2)(a) of the Crimes Act No.44 of 2009. The particulars of the offence were that;

‘Statement of Offence

RAPE: Contrary ction 2ion 207 (1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence

MANIYAU MOW, on13&#16> day ofay of January, at Nast Nasinu in the Central Division, had carnal knowledge of LM, by insg his penis int anus anus of LM wither consent.

[2] A[2] After the summing-up, on 23 February 2018 tsessod expressed a unanimous opinion that the respondent was not guilty as charged. Thd. Though,ough, the assessors were directed by the trial judge to consider the alternative offence of defilement they had not expressed an opinion in the affirmative in that regard as well. The learned High Court judge in the judgment dated 26 February 2018 had agreed with the assessors and acquitted the respondent of the count of rape and held that even the offence of defilement had not been established beyond reasonable doubt.

[3] A timely notice of appeal against acquittal had been tendered by the appellant on 21 March 2018. The appellant’s written submissions had been filed on 23 September 2019 and 09 October 2020. The Legal Aid Commission appearing for the respondent had tendered written submissions on 25 May 2020.

[4] The complainant had been 15 years and 11 months old when the incident happened. She was staying with her aunt and her mother was living with her step farther and step sisters some distance away. On the day of the incident, she had gone to the mother’s house at her request to wash clothes when three of the friends of step father had arrived there and started drinking beer. The respondent was one of them whom the complainant had not even seen before. He had given her a dollar when she returned from the boutique with kerosene and a packet of BH with his money. All of them had gone to a fund raiser later and come back. While they were returning the mother had forced her to go with the respondent to buy beer. On their way the respondent had told her that he liked her but she had not responded. Once at home both the mother and step father had told her that the respondent liked her and asked her to marry him as he had money. The complainant had been confused and told the mother that she was still schooling. Earlier at the fund raiser the mother had told her that she will marry the respondent and when she gets pregnant the mother will look after the baby and she could go back to school. Upon returning home after buying beer, at one point of time the respondent had come inside the kitchen and again told her that he liked her. Then the mother had come and told both of them to go inside the room as her stepfather’s brother was coming with friends and they would be drinking outside. The mother had given a lantern as it was dark inside the room and then closed the door of the room after the complainant and the respondent went inside.

[5] What happened inside the room is given in paragraph 30 of the summing-up as follows.

6. ‘When they went inside the room her mother gave a lantern to either her or to the accused and then closed the door. Then the accused told her that he wants to lick her vagina. She was scared and she said she cannot give it to him. He then pushed her down and held her hands tight and told her to take off her panty. She lay down but she did not take off her panty. The accused removed it. He then lay on top of her and pulled off her panty. Then he forced his penis into her vagina. She tried to push him but he forced his body over her. He covered her mouth when she tried to shout. Because he could not insert his penis inside her vagina he tried it on her anus. She said his penis went inside her anus roughly one centimeter. She could feel the pain when he inserted the penis inside her anus. As soon as his penis went inside her anus she turned to her right and got up. She said the accused lay on her back when he inserted his penis inside her anus. She said she was facing up. When she got up after he tried to put his penis into her anus she felt pain in her anus and she started crying.
   
7. She said he also made love bites on the left side of her chest. This was the first time she experienced this and she was scared. She was pushing him away when he was making the love bites because he was biting hard.
   
8. When this was happening her stepsisters was sleeping at the corner of the same room. When she stood up the accused asked her why she got up. Then they heard her stepfather’s brother going to the washroom. Then the accused also got up. When the accused went out, she packed her clothes and wanted to run away. She said she was scared and also was thinking of committing suicide............’.
   

1. ‘She is a medical doctor with more than thirty one years of practice and she is specialized in obstetrics and gynaecology. She said she prepared the medical report tendered as PE1. She said D10 is the history as stated by the victim. She said she missed noting down the initial expression. However, she said that the victim looked distressed but was very corporative.
   
2. In her medical findings at D12, she noted two kiss marks on the left breast on physical examination. On vaginal examination she noted that there were no signs of fresh laceration. On her anal examination she noted a superficial laceration at the 12 o’clock position. She explained that superficial laceration means there was a wound noted at 12 o’clock position. She said a blunt force applied on that area like from an erect penis or fingers can cause such injuries. At D14 she just wrote the date of incident and the time as stated by the victim. At D16 she wrote her findings again. She said the injury she noted was a fresh injury.
   

[7] The appellant’s position had been summed up as follows.

‘37. The accused denies the allegations that he penetrated the anus of the complainant with his penis. However, the accused admits making love bites on her with her consent. He also admits that he pushed his penis inside the complainant’s vagina but because the complainant said ‘it is paining’ he stood up. He also says that he asked the complainant before he tried to insert his penis inside the complainant’s vagina. The defence says that the complainant was not a credible witness.’

[8] The trial judge had addressed the assessors on defilement too in paragraph 40 of the summing-up.

40. ‘In the event you have a doubt with regard to the elements on consent, that is, whether the complainant did not consent or whether the accused knew or believed she was consenting or was reckless as to whether she consented or not, but you are satisfied beyond reasonable doubt that the accused did penetrate the complainant’s anus with his penis, you should find the accused not guilty of rape, but consider whether the accused is guilty of the offence of defilement. When you consider defilement, it is not a defence that the complainant consented to sexual intercourse. However, it is a defence to this offence if it appears to you that the accused had reasonable cause to believe, and did in fact believe, that the complainant was of or above the age of 16 years.’

[9] In the first place given the factual matrix placed before court I am surprised that due to some inexplicable reason the DPP had failed to charge the mother and step father for aiding and abetting in the commission of the offence of rape on the complainant and also failed to charge the respondent for attempted rape. I think these failures had caused a substantial damage to the prosecution case against the respondent in the overall context of this case.

[10] However, the trial judge’s summing-up cannot be criticised as it contains well-balanced and objective detections and is complete in all respects. Therefore, the appellant had understandably challenged the judgment in this appeal.

[11] The legal basis of the appellant’s challenge revolves around the trial judge’s role when agreeing with the majority of assessors. What could be identified as common ground arising from several past judicial pronouncements is that when the trial judge agrees with the majority of assessors, the law does not require the judge to spell out his reasons for agreeing with the assessors in his judgment but it is advisable for the trial judge to always follow the sound and best practice of briefly setting out evidence and reasons for his agreement with the assessors in a concise judgment as it would be of great assistance to the appellate courts to understand that the trial judge had given his mind to the fact that the verdict of court was supported by the evidence and was not perverse so that the trail judge’s agreement with the assessors’ opinion is not viewed as a mere rubber stamp of the latter [vide Mohammed &v State [2014] FJS] FJSC 2; CAV02.2013 (27 February 2014), Kaiyum v State [2014] FJCA 35; AAU0071.2012 (14 March 2014), Chandraټv State [ 015] 32; CAV21CAV21.2015 2015 (10 December 2015) and Kumar v State [2018] FJCA 136; AAU103.2016 (30 August 2018)].

[12] However, the appellant, erroneously though, seems to rely on decisions which deal with the trial judge’s role when disagreeing with the majority of assessors. When the trial judge disagrees with the majority of assessors he should embark on an independent assessment and evaluation of the evidence and must give ‘cogent reasons’ founded on the weight of the evidence reflecting the judge’s views as to the credibility of witnesses for differing from the opinion of the assessors and the reasons must be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial [vide Lautabui v State [2009] FJSC 7; CAV0024.2008 (6 February 2009), Ram v State [2012] FJSC 12; CAV0001.2011ay 2012), Chandra v&&#160e& [ FJSCCAV21.2015.2015 (10 D(10 December 2015), Baleilevuka v State [2019] FJCA 209; AAU58.2015 (3 October 2019) and Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27uary ].

[1

[13] In3] In either situation the judgment of a trial judge cannot be considered in isolation without necessarily looking at the summing-up, for in terms of section 237(5) of the Criminal Procedure Act, 2009 the summing-up and the decision of the court made in writing under section 237(3), should collectively be referred to as the judgment of court. A trial judge therefore, is not expected to repeat everything he had stated in the summing-up in his written decision (which alone is rather unhelpfully referred to as the judgment in common use) even when he disagrees with the majority of assessors as long as he had directed himself on the lines of his summing-up to the assessors, for it could reasonable be assumed that in the summing-up there is almost always some degree of assessment and evaluation of evidence by the trial judge or some assistance in that regard to the assessors by the trial judge.

[14] Therefore, in my view the appellant is wrong to rely on decisions which set out the trial judge’s role in disagreeing with the assessors to challenge the learned trial judge’s judgment in the present case.

01^st ground of appeal

[15] The appellant argues that the trial judge had not given reasons in the judgment as to why the complaint was believable on the issue of anal penetration but not on consent. It is plain and clear that for the aspect of anal penetration the evidence of the complainant is corroborated by medical evidence. Thus, the trial judge cannot be faulted for having believed the complainant on the issue of anal penetration.

[16] The trial judge’s reasons for having doubts as to whether the anal penetration had taken place without her consent are given in paragraphs 5-7 of the judgment.

‘5. The complainant’s evidence was that she tried to shout, but the accused covered her mouth with his hand. She said the accused tried to insert his penis inside her vagina but when he did not succeed he inserted his penis inside her anus. Given her evidence, she was lying down on the mattress facing upwards when the accused tried to insert his penis inside her vagina. However, she said that the accused was lying on her back when he inserted his penis inside her anus. When the prosecutor asked her what position she was in when the accused penetrated her anus, her answer was she was facing upwards.

6. In my view, the complainant tried to avoid telling this court how she changed her position in order to make it possible for the accused to penetrate her anus with his penis. The complainant also said in her evidence that she cannot recall the time she changed her clothes when she was inside the room whereas she admitted telling the police that she changed into a dress before she lay on the mattress. The accused’s evidence was that the complainant changed into a ‘thin’ dress before she lay on the mattress that night.
   
7. Considering all the evidence led in this case, I am satisfied beyond reasonable doubt that the accused did penetrate the complainant’s anus with his penis. However, given the inconsistencies and the improbabilities noted in the evidence given by the complainant I have a doubt whether the accused penetrated the complainant’s anus without her consent. Therefore, I find that the evidence does not establish the offence of rape as charged, beyond reasonable doubt.
   

[17] It looks as if that the trial judge’s doubts had arisen mainly due to her evidence on what position she was when anal penetration took place; was she facing upwards or was the respondent was lying on her back.

[18] It is open to one to argue that given the fact that this was the complainant’s first sexual experience and she had seen or met the respondent for the first time in an environment where she was literally forced into a dark room by her own mother with this stranger, whether she would have consented to any kind of sexual activity. According to the respondent the complainant had refused to allow him even to lick her vagina. In the circumstances, it is possible to argue that it was unfair by the complainant who was still less than 16 years of age to have attributed ‘consent’ on her part for the anal penetration.

[19] Nevertheless, the trial judge cannot be faulted for not having undertaken the probing role as if he was disagreeing with the majority of assessors considering what he had stated in the judgment.

[20] Therefore, there is no reasonable prospect of success in this ground of appeal.

02^nd ground of appeal

[21] The appellant complains that the trial judge erred in law and fact when he acquitted the respondent on the charge of rape on the basis of inconsistencies and improbabilities of the complainant’s evidence.

[22] The trial judge in the summing-up had addressed the assessors as to how to evaluate inconsistencies in paragraph 10-12. In the course of narrating the evidence of the complainant in paragraph 30 the trial judge had pointed out to the assessors some inconsistencies that had arisen in her evidence but not separately in the summing-up. Then, at paragraph 38 the judge had reminded the assessors to consider the inconsistencies pointed out by the defence as per the directions given. In the judgment the trial judge had not specifically pointed out the instances of such inconsistencies or improbabilities other than saying in paragraph 7 that given such inconsistencies or improbabilities he had doubts whether the respondent penetrated the complainant’s vagina without her consent.

[23] The appellant in the written submissions had not pointed out exactly the inconsistencies or improbabilities supposed to be immaterial. In the circumstances there is paucity of material submitted by the appellant to even consider this ground of appeal.

[24] On the other hand, the same discussion on the relevant law regarding the role of a trial judge in agreeing with the assessors would apply here as well.

[25] Therefore, there is no reasonable prospect of success in this ground of appeal.

03^rd ground of appeal

[26] The appellant argues that the trial judge was wrong to have acquitted the respondent of the offence of defilement when he had not raised nor made out the defence that there was reasonable cause to believe that the complainant was of or above the age of 16 years.

[27] The appellant’s argument flows from the conclusion of the trial judge that there had been anal penetration by the respondent but he had done it probably with the complainant’s consent. The state relies on Reddy v State [2018] FJCA 10; AAU06.2014 (8 March 2018) where the Court of Appeal held

‘[7] In my view once the Appellant had indicated that his defence was that no act of sexual intercourse took place, then the issue of age which is the basis of the statutory defence, is irrelevant. Questions by Counsel relating to age should not have been allowed. The obligation of the trial judge to consider whether to give directions on defences rests on there being some evidence adduced during the trial that warrants consideration of that defence by him and whether to give directions. In this case there was no evidence that related to what the Appellant believed to be the age of the complainant nor was there any evidence as to the appearance of the complainant at the time of the alleged sexual intercourse. There was no challenge to the age of the complainant and the defence was not raised by any evidence given by the Appellant.

‘[8] Under those circumstances it was not necessary for the trial judge to raise the defence in his summing up let alone give detailed directions as to whether the defence was available on the evidence. In fact in the absence of the defence being raised by the appellant in the form of some evidence that satisfied the evidentiary burden it is difficult to understand how the Judge could give meaningful directions.

[25] However, in my view when one reads section 215(2) in the light of sections 59, 60 and 61 it appears that the burden on an accused under section 215(2) of the Crimes Act is an evidential burden of proof as contemplated in section 59 and not a legal burden of proof under section 60 and 61 and I agree with the following pronouncement of Grant CJ in Sat Deoi Wasto s/o Ch/o Chandar Deo and Reginam Criminal Appeal/77 as quotequoted in Samiate #160;nal Appeal No 0f 2002S2002S: 26 November 2004 [2004 FJCA 54] on the proviso to section 156 156 (1) of the ef="http://wclii.j/legn/legnsol_acol_act/pc66/">Penal Code whichwhich is similar to section 215(2) of the the Crimes Act.

‘It ite clear from this wording that an accused does not have tove to be satisfied beyond reasonable doubt that the girl is of or above th of sixteen; it is only necy necessary for him to believe it on reasonable grounds. Moreover, it is not incumbent upon an accused to satisfy the court beyond reasonable doubt that he had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen; nor does he have to satisfy the court on the balance of probabilities. The use of the word "defence" in the proviso does not connote any shifting of the burden of proof. The proviso refers to no more than an evidential burden so that, for, an accused to fall within the exception created by the proviso, there need only be some evidence, adduced either by the prosecution or by the defence, sufficient to raise a reasonable doubt.’

‘[31] On the other hand, the Appellant at the trial had not taken up the defense available section 215(2) of the Crimes Decree. Neither had he run his case on that basis. If an accused is to do that he has to first admit the act of sexual intercourse or an attempt to have sexual intercourse as both acts are included in section 215(1). Admittedly, his defense had been one of ‘no sexual intercourse’

[28] The respondent’s defence to the charge of anal rape had been that there was no penetration of the anus at all. The respondent had not discharged the evidential burden cast on him in terms of section 215(2) of the Crimes Act, 2009 for defilement. He had not run his defence on that basis. However, he had admitted that his private part had gone inside her ‘mimi’ but he had withdrawn from the act as the complainant cried ‘paining’. It is not clear what organ he had referred to as ‘mimi’; the vagina or anus. If he had been categorical that there was no penetration of the anus then he must have referred to the complainant’s vagina in which event there had been vaginal penetration. Then the only issue would have been that of consent. Neither the trial judge nor the appellant seems to have been alert to this piece of evidence and its effects.

[29] Thus, the law relating to defilement is clear. In any event, in my view, the respondent had not taken up the defence available in section 215(2) of the Crimes Act, 2009 and there was no need for the trial judge to have even given the directions to consider defilement. Nevertheless, the judge had done so and the assessors had not held in favour of the prosecution. The trial judge agreed with the assessors on the basis that the respondent had reasonable cause to believe, and did in fact believe that the complainant was of or above the age of 16 years and therefore the alternative offence of defilement had not been established beyond reasonable doubt.

[30] I think the trial judge’s conclusion that the respondent had reasonable cause to believe, and did in fact believe that the complainant was of or above the age of 16 years is erroneous and had no factual basis. This is an error of law coupled with the facts. However, the consideration of the offence of defilement was not necessary in the first instance. Thus, the trial judge’s error in the above conclusion was based on an unwarranted direction to the assessors and himself in the first place.

[31] It appears that when the trial judge held that there had been anal penetration he had to disagree with the assessors opinion on possible defilement of the complainant unless the judge decided that the appellant had reasonable cause to believe and he did in fact believe that the complainant was of or above the age of 16 years in which event the consent of the complainant did matter. This is what the trial judge had expressed in paragraph 8 of the judgment.

[32] Since the judge had concluded affirmatively on penetration of the anus, the appellant seems to argue that the trial judge at least should have found the respondent guilty of defilement as consent was immaterial under section 215 (1) of the Crimes Act. The trial judge had not done so because he gave the benefit of section 215 (2) of the Crimes Act by holding erroneously that the respondent had reasonable cause to believe and he did in fact believe that the complainant was of or above the age of 16 years.

[33] The respondent argues that it is unfair by him for the state to raise this issue at this stage as there was no evidence led by the prosecution that the respondent had reasonable cause to believe and he did in fact believe that the complainant was of or above the age of 16 years; nor did the prosecution cross-examined him on that premise. However, the evidential burden was on the respondent to avail himself of the benefit of section 215(2) of the Crimes Act. Further, even if the prosecution had led evidence or the respondent had been cross-examined on this issue, he could not have taken up a different stance as his position had been that of denial of the physical act of penetration. In other words the respondent argues he has been ambushed by the appellant in this regard at this stage.

[34] In the light of above discussion I think this question of mixed law and facts need to be examined by the full court with the aid of the complete record where the verdict of acquittal could be examined in the light of section 23(1) of the Court of Appeal Act as to whether it is unreasonable or cannot be supported having regard to the totality of evidence along with a possible verdict of defilement without the element of consent.

[35] I accordingly, grant leave to appeal against acquittal on the third ground of appeal.

Order

1. Leave to appeal against acquittal is allowed only on the third ground of appeal.

Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL