Natadra v State [2021] FJCA 2; AAU0081.2019 (5 January 2021)

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

CRIMINAL APPEAL NO.AAU 0081 of 2019

[In the High Court at Lautoka Case No. HAC 137 of 2017]

BETWEEN:

NACANIELI NATADRA

Appellant

AND:

STATE

Respondent

Coram: Prematilaka, JA

Counsel: Ms. S. Hazelman for the Appellant

Dr. A. Jack for the Respondent

Date of Hearing: 04 January 2021

Date of Ruling : 05 January 2021

RULING

[1] The appellant had been indicted in the High Court of Suva on one count of abduction of young person contrary to section 285 of the Crimes Act, 2009, one count of sexual assault contrary to Section 210 (1) (a) of Crimes Act, 2009 and one count of rape contrary to section 207(1) and (2) (b) of the Crimes Act, 2009 and committed at Lautoka in the Western Division on 03 July 2017.

[2] The information read as follows.

‘FIRST COUNT
Statement of Offence

ABDUCTION OF YOUNG PERSON: Contrary to section 285 of the Crimes Act, 2009

Particulars of Offence

NACANIELI NATADRA on the 3^rd&#1y oday of July, 2017 at Lautoka in the Western Division, unlawfully took SAIVORA JESSIE DAUCAA MAKA MASALA, being unhe age of 18 years, out of the possession and against the will of her parents.

SECOND COu>
Statement of Offence

>

SEXUAL ASSAULT: Contrary to section 210 (1) (a) of the Crimes Act, 2009.

Particulars of Offence

NACANIELI NATADRA on the 3^{rdSAIVORA JESSIE DAUCAKACAKA MASALA, by licking her vagina.}

THIRD COUNT
Statement of Offence

RAPE: Contrary to section 207 (1) & (2) (b) of the Crimes Act, 2009.

Particulars of Offence

NACANIELI NATADRA on the 3^rd day of J2017 at Lautoka in a in the Western Division, inserted his tongue into the vagina of SAIVORA E DAUCAKACAKA MAKA MASALA, without her consent.

[3] At the conclusion of the summing-up on 15 May 2019 the aors’ unanimous opinion was that the appellant was guilty of all three counts as chargcharged. The learned trial judge had agreed with the assessors in his judgment delivered on the same day, convicted the appellant and sentenced him on 17 May 2019 to 14 years and 11 months with a non-parole period of 12 years and 11 months.

[4] The appellant’s timely application for leave to appeal against conviction and sentence had been signed on 03 June 2019 (which reached the CA registry on 18 June 2019). Legal Aid Commission had filed amended grounds of appeal only against conviction and written submissions on his behalf on 26 October 2020 and the state had tendered its written submissions on 30 October 2020. On 30 October 2020 the counsel for the appellant indicated that the appellant was to abandon his sentence appeal and therefore, he was directed to tender his abandonment notice in Form 03 on the next date. Both parties relied on their respective written submissions at the leave to appeal hearing.

[5] In terms of section 21(1) (b) of the Court of Appeal Act, the appellant could appeal against conviction only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.

[6] Grounds of appeal urged on behalf of the appellant are as follows.

Conviction

(i) The appellant is prejudiced by the learned trial judge’s direction on alibi at paragraph 64 of the summing-up, that the assessors are informed ‘you should bear in mind that sometimes an alibi is invented because the accused thinks it is easier than telling the truth’.

(ii) That the learned Trial Judge erred by not directing the assessors to consider recent complaint evidence only in relation to the offence of abduction of a young person in light of the evidence of the complainant’s mother.

[7] The learned trial judge has summarized the prosecution evidence as follows in the summing-up.

31. The complainant had gone to the shop to buy bread in the evening of 3rd of July 2017. On her way to the shop, she had seen a black colour twin cab, which was parked on the road. It has a black pipe fixed at the front of the vehicle. The complaint had not given much attention and went pass it. She could recall the number of the vehicle as HV 510. While she was walking towards to the shop, the complainant had felt that someone was behind her back. Suddenly the person who came from behind of her, had covered her mouth from one of his hands and grabbed her waist from his other hand. He had then thrown the complainant into the back seat of the said twin cab. He then tied her hands and legs with clothes. That person then went and get into driver’s seat and drove the car forward.
    
32. According to the complainant, he had driven the twin cab down to the Field 40, then reached the Total Service Station near Navutu and then drove into the roundabout opposite the service station and parked the car. He then came and open the back door which is near to the place where the complainant was seated. He then untied her legs and pulled her basketball pants and her undergarment. The person had told the complainant not to worry and its okay. He had separated her legs by using his two hands and started to lick her vagina. He used his tongue to lick inside her vagina. The complainant felt that he was licking inside her vagina. The complainant told him to stop but he kept on doing it. He licked it for half an hour. The complainant had screamed but nobody was there. According to her, only two of them were at that place.
    
33. Having licked her vagina and inside of it, the person had thrown the pants and the underwear to the complainant. He then forcefully took her to the front passenger seat. She was still naked and her hands were still tied up. The person then untied her hand, letting her to dress up her pants and undergarment. He then drew vehicle near to the Mariamman temple and pushed her out from the vehicle.
    
34. The complainant had observed the person from the time they reached the Total Service Station until he licked her vagina and put his head up. She has seen his face from the lights came from the street lights when they were passing the service station. The vehicle was not traveling much fast. The complainant said that she could not jump out of the car, as her legs and hands were tied up. When he was licking her vagina, his face was so closed to her.’
    

36. When she went home, the complainant had related this incident to her mother. They then went to the police station and reported the matter. The police had taken her to the medical examination. The complainant made her statement to the police after the medical examination.

37. The complainant was summoned to the police post at the Lautoka market on the 5th of July 2017. She was asked to go into the market and check if the person who committed this crime to her was sitting in the market. She was accompanied by WPC Bulou. The complainant walked ahead of WPC Bulou. Once they reached to the last station of the market, where normally men drink grog, the complainant had identified the accused when he was sitting there. She had pointed out the accused as the person who committed this crime to her on the 3rd of July 2017. The complainant had later identified the said twin cab when it was parked at Coronation Church. The complainant identified the accused in the court, as the person that she identified at the market and also as the person who committed this crime to her on that particular night.

[8] The appellant had remained silent but had called three witnesses on his behalf and the trial judge had summarized their evidence as follows.

‘46. The first witness of the defence is Ema Natadra. She is the wife of the accused. According to her evidence, the accused was at home when she came home from work at about 7.30 pm in the evening of 3rd of July 2017. They were having the evening devotion at home when she came home. The accused was seated on the settee with the daughter while few of them were seated on the floor. Her mother led the prayers and the accused also actively participated in the devotion. The devotion went on till 8 pm and then they had dinner.

47. During the cross examination, Ms. Ema Natadra said the accused is from Ra and they have a black colour twin cab with a pipe attached to the front bearing the registration number HV 510. The accused had told her when he left the office on the afternoon of 3rd of July 2017, that he was going to see Sam. According to her evidence, the accused had been driving the said vehicle on that day before he came home.
    
49. Miliana Natadra, the daughter of the accused in her evidence explained about the devotion that had at their home on the evening of 4th of July 2017.
    
50. The last witness of the defence is WDC Barbara, who has assisted WPC Bulou in this investigation. According to WDC Barbara, they have not taken any photos of the accused on the 5th of July 2017. She has further assisted WPC Bulou in recording the statement of the complainant. The complainant was in a state of shock and most of the time she was crying. WDC Barbara had to calm her down during the recording of the statement.’

01^st ground of appeal

[9] The appellant argues that the trial judge’s comment at paragraph 64 of the summing-up would have left the assessors with the impression that the appellant was guilty.

‘64. If you conclude that the alibi of the accused is true or may be true, then the accused cannot participate in this alleged crime and you must find the accused not guilty. If, on the other hand, you are sure, having considered the evidence carefully, that the accused’s alibi is false, that is a finding of fact which you are entitled to take into account when judging whether he is guilty. But do not jump to the conclusion that because the alibi put forward is false the accused must be guilty. You should bear in mind that sometimes an alibi is invented because the accused thinks it is easier than telling the truth. The main question for you to answer is: are we sure that this alleged incident involving the accused actually took place as claimed by the prosecution.’

[10] Looking deep into the impugned sentence carefully, it becomes clear that the judge was trying to emphasize to the assessors that simply because they thought the alibi to be false they should not find the appellant guilty as shown by the preceding sentence ‘But do not jump to the conclusion that because the alibi put forward is false the accused must be guilty.’ Perhaps the trial judge’s choice of words to express that idea was not ideal as taken in isolation, at first blush it looks as if the disputed sentence conveys something adverse to the appellant but in fact it is not so. I have no doubt that it had been said in the best interest of the appellant.
[11] However, the impugned sentence should not be taken in isolation and made a ground of appeal though the trial could well have conveyed the idea differently. The rest of the judge’s direction on alibi is as follows.

65. In respect of the defence of alibi, the accused is not required to prove beyond reasonable doubt his alibi defences. The burden of the accused to prove his alibi is evidential burden. It means that the accused has to adduce or point to evidence that suggests a reasonable possibility that he was at somewhere else when this alleged offence took place. Such evidence that could point or suggest that the accused was somewhere else, and not at the scene of the crime, has to be credible and reliable evidence.
    
66. Accordingly, if you believe or may be believe that there is evidence that suggest a reasonable possibility that the accused was not present at the scene of crime and he was attending at the family devotion at home, you can find the accused not guilty.
    
67. You have to take into consideration the evidence of the wife and daughter of the accused. As I mentioned before, the wife gave evidence about the event pertaining to the devotion in the evening of 3rd of July 2017. However, the daughter gave evidence about the event pertaining to the devotion in the evening of 4th of July 2017. You are allowed to taken into consideration the probability or possibility of evidence given by the wife and the daughter and how those evidence become relevant to the issue of alibi.
    
68. Moreover, you are allowed to take into consideration the time of this alleged incident took place. The wife only saw the accused after 7.30 pm of the 3rd of July 2017. According to the mother of the complainant, the complainant left to the shop at around 6.45 p.m. Half an hour later, one of the brothers in law of Kinisimere went in his car to look for the complainant. The house of the accused is located five to ten minutes’ drive from Field 40.
    

[12] I have no doubt that the trial judge’s directions as a whole conforms to the principles of law on alibi directions set out in Ram v State [2015] FJCA 131; AAU0087.2010 (2 October 2015) and later in Mateni v State [2020] FJCA 5; AAU061.2014 (27 February 2020).

‘[29] When an accu accused relies on al160; as h;as his defence, ditionition to the general direction of the burden of proof, the jury (in Fiji the assessors) should be directed that rosec mustrove the alibi
b0;#160;and that evet even if they conclude that that the ali60;R v Anderson [1991] Crim. LR CA; R llie [1995] App R 31; R v Lesl Le/uey [1996] 1 Cr Ap9;’;

[13] The judg direthe aors that if the alibi is or may may be true or if they believe or may bely believe ieve that alibi evidence suggests a rease possibility that the appe appellant may not have been present at the crime scene at the relevant time they should find him not guilty. These directions in substance are similar to the intermediate position relating to an alibi defence that I had addressed in Prasad v State [2020] FJCA 98; AAU102.2019 (7 July 2020).

[14] In addition the trial judge in hisment had given his mind fuld fully to the evidence at paragraphs 6-8 including alibi defense and stated as follows.

‘9. In view of these reasons, I do not find any reasonable doubt in the evidence of identification. Hence, I find that the complainant had accurately identified the accused as the person who committed these crimes to her on the 3rd of July 2017. In view of these reasons, I am satisfied that the prosecution has successfully disproved the defence of alibi taken by the accused. Taking into consideration above conclusion, I accept the evidence given by the complainant as reliable, credible and truthful evidence.’

[15] In any event the appellant’s counsel should have sought redirections in respect of this complaint now being made on the summing-up as held in Tuwai v State [2016] FJSC35 (26 August 2016) and Alfaaz v State [2018] FJCA19; AAU0030 of 2014 (08 March 2018) and Alfaaz v State [2018] FJSC 17; CAV 0009 of 2018 (30 August 2018). The failure to do so would disentitle the appellant even to raise them in appeal with any credibility and it is quite possible that the trial counsel had not understood the impugned statement in a negative sense at that stage.
[16] Therefore, there is no reasonable prospect of success in appeal as far as this appeal ground is concerned.
02nd ground of appeal
[17] This ground of appeal concerns the alleged failure of the trial judge to direct the assessors to consider recent complaint evidence only with regard to the charge of abduction of a young person as the complainant’s complaint to her mother had revealed only that.
[18] The complainant’s mother’s evidence is as follows, according to the summing-up.

39. You have heard the evidence of the mother of the complainant, in this case it is Kinisimere. According to Kinisimere, she had told her children at around 6.45 p.m. in the evening of 3rd of July 2017, that someone has to go to the shop to buy bread. The complainant had then insisted that she would go to shop and buy bread. Her husband was not at home at that time. The complainant is her eldest daughter. About half an hour after the complainant left home to the shop, one of Kinisimere’s brothers-in-law had gone to the shop in a car to look for the complainant. He came home, saying that he could not find the complaint. Then her husband came home from work. When her husband was about to go and look for the complainant, Kinisimere saw the complainant was coming home with a plastic bag containing bread. She came to her mother crying and hug her. The complainant had told that she was feeling like to vomit. She then said that one old man kidnapped her. Kinisimere was afraid to listen or ask the complainant more details about this incident. They then left to the police station.’

74. You have heard that the complainant had told her mother about this incident when she reached home after encountering this incident in the evening of 3rd of July 2017. The mother of the complainant, in this case is Kinisimere, gave evidence explaining how the complainant related this incident to her and the subsequence steps that she took in this regards. This form of evidence given by the mother of the complainant is known as evidence of recent complaint. It is not evidence as to what actually happened between the complainant and the accused. The mother of the complainant was not present and witnessed what happened between the complainant and the accused.
75. You are entitled to consider the evidence of recent complaint in order to decide whether or not the complainant has told the truth. The evidence of recent complaint assists you to determine the consistency of the complainant’s evidence and also to assess the reliability and credibility of her evidence. It is for you to decide whether the evidence of recent complaint helps you to reach a decision, but it is important that you must understand that the evidence of recent complaint is not independent evidence of what happened between the complainant and the accused.
    

[19] In Raj v State [2014] FJSC 12; CAV0003.2014 (20 August 2014) the Supreme Court set down the law regarding&recent complaint evidence as follows.

‘[33] In any case evidence of recent complaint was never capable of corroborating the complainant’s account: Whitehead&#16> (1929) 1 . At most it was awas ant to the question of cons consistency, or inconsistency, in the complainant’s conduct, and as such was a matter going to her bilit reliability as a as a witness: Basant Singh &amh & Others v. The State Crim. 12 of 1989; <;Jones v. ueen [1997] HCA 12; &#16> ) 191439; Vasu v. The Stu>&& #160;Crim. App.011/2006S, 26S, 24th November 2006.

[37] Procedy for the evidencedence of recent complaint to be admissible, both the complainant and the witness complained to, must tests to erms of the complcomplaint: Kory White v. The Queen [1999] 210 at p215H. 15H. This was done here.

[38i>[38] The complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with her evidence given at the trial. It goes to support and enhance the credibility of the complainant.

[39] The complaint need not disclose all of the ingredients of the offence. But it must disclose evidence of material and relevant unlawful sexual conduct on the part of the Accused. Itot necessary for the complainant to describe the full extenextent of the unlawful sexual conduct, provided it is capable of supporting the credibility of the complainant’s evidence.’

[20] It appears that paragraph [39] of Raj v State (supra) expounproposition wion which is wide enough to encompass the complainant’s recent complaint on abduction to her mother upon the overall consistency and credibility of her testimony on the other two charges of rape and sexual assault as well, for her evidence on those acts are inextricably interwoven with that of the initial act of abduction and sexual assault and rape had immediately followed. It is clear that the abduction was only for the purpose of committing subsequent sexual acts on the complainant. Abduction not only facilitated the other two acts but they would also have not happened without the initial act of abduction. The complainant’s evidence on all three acts speaks of one unbroken chain of events in the same transaction and in my view she need not necessarily have complained of all three acts to the mother to treat her complaint as recent complaint evidence on all three acts. It would be most artificial to restrict her complaint of abduction as constituting recent complaint evidence only regarding the abduction. In any event, the mother could not bear to hear the rest of her story upon hearing the abduction which may have prevented the complainant from narrating the rest of the story to the mother.
[21] The appellant’s counsel should have sought a redirections in respect of this alleged omission as well, as held in Tuwai v State [2016] FJSC35 (26 August 2016) and Alfaaz v State [2018] FJCA19; AAU0030 of 2014 (08 March 2018) and Alfaaz v State [2018] FJSC 17; CAV 0009 of 2018 (30 August 2018) if he though it to be a material omission.
[22] Therefore, there is no reasonable prospect of success of this appeal ground.

Order

1. Leave to appeal against conviction is refused.

2. The appellant is directed to file an abandonment notice regarding the sentence appeal in Form 3 in due course; his counsel to assist him in this regard.
   

Hon. Mr. Justice C. Prematilaka

JUSTICE OF APPEAL