Jitoko v The State [1991] FJHC 37; Haa0094.90s (23 May 1991)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 94 OF 1990

Between:

KEPUELI JITOKO
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Senaratne for the Respondent

JUDGMENT

The appellant was originally charged on the 6th September 1989 with an offence of Rape allegedly committed on the 25th of May, 1989. He pleaded not guilty and elected trial in the High Court. Then on the 27th of December the appellant changed his election on the advice of his counsel at the time Mr. S. Singh.

The charge remained a single offence of Rape until the trial date when counsel for the prosecution successfully sought to add a further 2 counts of Rape allegedly committed by the appellant on the same victim "... on a date in 1988" and "... between the 1st of January 1989 and 24th of May 1989".

There is no record of the appellant being asked about the application to add the 2 extra counts nor does it appear as if the appellant was represented at the time but in any event he pleaded 'not guilty' to all 3 counts of Rape and elected trial in the Magistrate Court.

Then the following cryptic entry appears in the typed record of proceedings:

"Accused had been earlier warned that case would be heard today and all prosecution witnesses are present for trial."

Reading as best I can between the lines it seems that at that stage the appellant had sought an adjournment which was refused by the trial magistrate. The exact nature and reasons for the application are no-where recorded in the trial record however learned State Counsel (who also prosecuted the case in the Magistrates Court) confirmed that the appellant had unsuccessfully sought an adjournment in order to enable his counsel to attend the trial.

Thereafter the appellant's trial began and the prosecution called 8 witnesses and tendered the two caution interview records of the appellant together with his charge statement and the complainant's birth certificate (Ex.2). This latter document revealed that the complainant was born on the 14th of November 1978 which would have placed her age at under 12 years at the time she testified on oath in the trial.

At the close of the prosecution's evidence the appellant elected to remain silent and the trial magistrate after a night's adjournment delivered a '3 paragraph judgment' convicting the appellant who was then sentenced to concurrent terms of 2 ½ years imprisonment on each count!

The appellant now appeals against both his conviction and sentence. He had lodged in person 2 separate letters in which he sets out 15 grounds of appeal against his conviction. These may all be reduced to 3 principal grounds as follows:

(1) That the trial magistrate erred in refusing the appellant's application for an adjournment thereby depriving him of the opportunity to be defended by counsel;

(2) That the trial magistrate erred in failing to ask the appellant if he had witnesses to call in his defence;

(3) The conviction is against the weight of the evidence and is unsafe and unsatisfactory in the following respects:

(a) The prosecution's evidence was fabricated and contradictory;

(b) The prosecution's expert witnesses were unqualified to testify;

In advancing his first ground of appeal the appellant stated that he had sought an adjournment because he was unfamiliar with court procedures and wished to be represented by counsel. Unfortunately, his counsel at the time Mr. T. Fa could not be present because he was ill in hospital and that was the reason he had asked for the adjournment. When his application was refused he was left to his own devices (so to speak) and although he was given the opportunity to, he had not cross-examined any of the prosecution's principal witnesses because in his own words, he "didn't know what to do or ask of them".

In this latter regard it is a matter of record that of all 8 prosecution witnesses the appellant questioned only the nurse and even that solitary question elicited an answer seemingly unrelated to the substance of her evidence. Needless to say the complainant and 3 alleged eye-witnesses were not cross-examined at all and their evidence for all intents and purposes remained unchallenged.

Section 188 of the Criminal Procedure Code Cap. 21 provides:

"Any person accused of an offence before any criminal court, or against whom proceedings are instituted under this Code in any such court, may of right be defended by a barrister and solicitor."

Then Section 202 provides: (so far as relevant)

"Before ...... the hearing of any case, it shall be lawful for the court in its discretion to adjourn the hearing ...... "

Clearly a magistrate has a discretion to grant or refuse an adjournment. Equally such discretion must be judicially exercised in the interests of justice, with a view to the expeditious disposal of cases and in furtherance of an accused's constitutional right to:

"adequate time and facilities for the preparation of his defence."

In this case was the accused given that 'right' when the trial magistrate refused his application for an adjournment? To answer this question let us examine the magistrate's ruling and the facts more closely.

Firstly, the ruling, in refusing the appellant's application it is not recorded that the prosecutor objected but 'the reasons' that were recorded are that the:

"accused had been earlier warned that the case would be heard today and all the prosecutions witnesses are present."

With respect to the trial magistrate I have examined all prior entries in the original handwritten records and am unable to find any such "warning" being given to the appellant and although the presence of all the prosecution's witnesses would have been a factor that militated against the adjournment of the case, I note that all the principal witnesses (incl. the nurse) live on the same island.

In Mary Kingston (1948) 23 Cr. App. R. 183 which the appellant cited in his written submissions and in which the facts are almost identical to the present case, the following relevant headnote appears:

"On the trial of the appellant, counsel who had briefed for her defence, owing to a misunderstanding, was not present in Court. Other members of the Bar were present and available. The Judge declined to postpone the trial or to accede to a suggestion made by counsel for the prosecution that one of the other counsel available should be asked to hold the brief of counsel who had been briefed for the defence, and the appellant was in the result tried as an unrepresented person. She did not cross-examine any of the witnesses for the prosecution, and though her rights were clearly explained to her by the Judge, did not go into the witness-box or make a statement from the dock or call any evidence.

Held, that the course adopted was tantamount to depriving the appellant of the right which she had to be defended by counsel, and the conviction must be quashed."

Then there was the "amendment" of the original charge by the addition of 2 further counts of Rape which occurred almost immediately before the trial began.

This would have certainly taken the appellant by surprise and by its very nature would have necessitated at the very least additional instructions to counsel and possibly a change in 'defence tactics'. Needless to say both courses would have necessitated an adjournment of the trial.

In this particular regard Section 214(3) of the Criminal Procedure Code provides: (as paraphrased)

"Where an alteration of the charge is made (by the addition of 2 further counts) ..... the court shall, if it is of opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary."

In addition Section 120(3) which deals with the joinder of several counts in a charge provides: (so far as relevant for present purposes)

"Where, before trial, ...... the court is of opinion that a person accused may be embarrassed in his defence by reason of being charged with more than one offence in the same charge, ....... the Court may order a separate trial of any count or counts of such charge ...... "

It is clear to this court that at no time did the trial magistrate apply his mind to the above provisions for if he had done so he would have recorded it and more importantly it would have been clear to him that the appellant could not but have been 'misled' or at least been 'embarrassed' in his defence by the addition of 2 further counts of Rape against the same complainant, one of which had not even been raised by the police in his interview during the investigations!

Needless to say on the trial date the appellant (and presumably his counsel if he had appeared) would have come prepared only to defend one offence of Rape.

The appellant's second ground of appeal is founded on a passage which he cited from Archbold's (34th edition) at para. 549 and which is repeated in identical terms 3 decades later in Chapter 4 para. 392 of Archbold's (43rd edition) and which reads:

"When a defendant is not defended by Counsel, the judge should inform him of his right to cross-examine the witnesses for the prosecution, and, at the close of the prosecution, of his right to give evidence on his own behalf or to make an unsworn statement and to call witnesses." (my underlining)

More relevant however are the provisions of Section 211 of the Criminal Procedure Code which applies to all Magistrate Court trials in this country. That Section provides inter alia:

"At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall ......... inform him that he has a right to give evidence on oath from the witness box; ........ or to make a statement not on oath from the dock, ..... and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence ......." (my underlining)

The appellant complains that he was never informed of his right to call witnesses in his defence and although he claims he had witnesses to call he did not do so. This is evidenced the appellant claims by the absence of any reference to the same in the Magistrate Court record of proceedings.

In Brije Nand v. R. Lautoka Cr. App. No. 3 1984 Cullinan J. (as he then was) had occasion to examine the above provision in the context of a similar complaint. In the course of his judgment his lordship said:

"I am in no doubt that the provisions of Sections 210 and 211 clearly place upon a magistrate a duty to inform the accused personally whether or not a case has been made out against him ......., and thereafter, under Section 211 to explain the charge to the accused once again, to explain the options open to him and to ask him whether he has any witnesses to examine or other evidence to adduce in his defence. That duty lies upon the magistrate whether or not the accused is represented by counsel." (my underlining)

and later in the same judgment his lordship in rejecting counsel's suggestion that the record be returned and the trial magistrate be asked if the record was correct (i.e. in its omission to record that the appellant had been asked if he had witnesses to call) said:

"I see no basis for doing so. There might be some basis for such a course where the record has been challenged, by way of affidavit, by the appellant. That is not the case here. It is to be assumed that the record is correct. The learned trial magistrate has countersigned the record as being a true copy of the manuscript record, which latter I have also carefully examined."

Similarly in this case the trial magistrate has certified and countersigned the typed record as 'a true copy of the original'.

Learned State Counsel however whilst not making the same suggestion nevertheless submitted that the accused's right to call witnesses was necessarily included in the "3 options" given to the accused by the trial magistrate. With respect I cannot agree.

Section 211 expressly recognises only 2 of the so-called '3 options' available to an accused person who is required to make a defence to a charge. The third option is not expressly referred to but is just as important and that is the right to remain silent which was the "option" adopted by the appellant in this case.

In my view the entry in the trial record that appears at the close of the prosecution case and which reads:

"I find a case on all 3 counts to answer and give 3 options to accused. The accused elects to remain silent."

neither expressly nor inferentially supports State Counsel's submissions on this ground of appeal.

In Joseph Carter (1960) 44 Cr. App. R. 225 where the appellant was unrepresented owing to the absence of his counsel and where the court had refused an adjournment and the judge had failed to ask the appellant whether he wished to call any witnesses, the Court of Appeal in quashing the conviction said at p. 230:

"..... the appellant, unrepresented as he was did not in the result have a fair trial, and that it would be wrong in this case to apply the proviso."

In similar vein Cullinan, J. in Brije Nand v. R. (op.cit) in quashing the appellant's conviction in that case, said:

"..... the primary question for this court to decide is whether or not the appellant was properly tried. In my view he was not. I do not see how a court can convict an accused without ever putting him on his defence ..... Similarly if a prima facie case is made out the accused must be informed of such and thereafter given full opportunity to present his defence, if any. To do any less than that is to deny an accused a fair trial.

I do not see that the learned trial magistrate had power to record findings of guilty or convictions or to impose any sentence without first complying with the provisions of Section 211, 213 and 215 of the Code. Such findings, convictions and sentences must be regarded as nullities."

Then there is a further 'irregularity' that occurred in the proceedings to which State Counsel's attention was drawn in the course of the appeal and that was to the recorded fact that all the principal witnesses, who are students described as "children" by the trial magistrate, were permitted to give sworn evidence in the trial without any prior recorded enquiry being conducted by the trial magistrate as to the witness' age, or her understanding of the nature of an oath or of the necessity to speak the truth.

Such an enquiry is implicitly required by the provisions of Section 10 of the Juveniles Act Cap. 56 the relevant part of which reads as follows:

"Where in any proceedings against any person for any offence ...... 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."

In this case the complainant was not 12 years of age when she testified in the trial and although the composite expression "child of tender years" is no-where defined in the Juveniles Act the term "child" is defined for the purposes of the Act as: "a person who has not attained the age of fourteen years."

In Lal Khan (1981) 73 Cr. App. R. 190 the Court of Criminal Appeal considered the English equivalent of our Section 10. The headnote to the case reads in part:

"held: .... where, as in the present case, a young girl aged 12 was about to be called to give evidence, the judge should, in his discretion, have questioned her as to her understanding of the nature and solemnity of an oath in the presence and hearing of the jury; as this was not done, ....... it was not one for the application of the proviso ...... accordingly, the appeal would be allowed and the conviction quashed.

Per curiam: Where there is an inquiry in the presence of the jury as to the understanding of a child witness of the nature and solemnity of an oath, questions put to the child should be recorded so that they appear in the official transcript of the trial. "

More recently in Fazal Mohammed v. The State (1990) 91 Cr. App. R. 256 an appeal from Trinidad and Tobago which went to the Privy Council. The Privy Council considered a provision in identical terms to Section 10 of our Juveniles Act in the context of a trial in which a 13 year old girl was sworn after the trial judge had merely ascertained her age and the fact that she was a pupil at a Junior Secondary School.

In upholding the Court of Appeal's ruling that the girl's evidence was inadmissible the Privy Council endorsed the settled practice that required a trial judge, in the case of a child under 14, to satisfy himself by appropriate enquiry that the child had sufficient understanding of the nature of the oath and the solemn obligation to tell the truth that it implied before allowing the child to give sworn evidence.

In the present case under appeal the trial record contains an answer of the complainant and another witness to the effect that they understood the nature of the oath. The nature and details of their understanding however does not appear to have been canvassed at all and if it was (as State Counsel claimed in the appeal) then it has not been recorded but in any event such an enquiry would have served no useful purpose as it would have occurred (if at all) after the witness had already been sworn.

The nature and extent of the enquiry which a trial magistrate ought to conduct pursuant to Section 10 of the Juveniles Act was discussed by Dyke, J. (as he then was) in Suresh Chand v. R. Lautoka Criminal App. No. 77 of 1983 where the learned judge said:

"There are a number of matters for determination and record by the court. The court must first determine the child's age, as that is relevant to the issue of whether or not he is of tender years. If the child is of tender years, the court must then ascertain whether the child understands the nature of an oath. If the court is of the opinion that the child does understand the nature of an oath, such opinion should be recorded, in which case the child may be sworn. If the court is not of such opinion, that again is a matter of record. The court must then ascertain whether the child is possessed of sufficient intelligence to understand the duty of speaking the truth and to justify the reception of his evidence. Again, if the court is of the opinion that the child is so possessed of sufficient intelligence, the court's opinion in the matter should be recorded, and the child may then give unsworn evidence. If the court holds the contrary opinion, that should also be recorded and the child may not give evidence at all."

A more concrete example of the type of questions that might be asked in such an enquiry may be found in the recent Court of Appeal decision in C.A.Z. (1990) 91 Cr. App. R. 203 at p. 204.

If I may say so this last "irregularity" is perhaps the most serious of all because if the necessary enquiries had been conducted in respect of all of the "children" concerned then it might have been that their evidence would have only been permitted to be given "not on oath", in which case these so-called "corroborating eye-witnesses" would themselves require to be corroborated and their evidence would be incapable of mutually corroborating each other or even the evidence of the complainant if she too had only been permitted to give unsworn evidence.

In D.P.P. v. Hester (1972) 57 Cr. App. R. 212 the House of Lords had occasion to consider Section 38(1) of the Children and Young Persons Act 1933 (U.K.) on which Section 10 of our Juveniles Act is based.

Lord Diplock expressed his view on the meaning and effect of the Section in the following passage in his judgment at p.245:

"..... the section imposes an absolute prohibition upon conviction on the uncorroborated evidence of an unsworn child. Secondly, it expressly excludes as a permissible source of such corroboration the evidence of any other unsworn child."

Clearly then, in permitting all of the "children" to testify on oath without enquiry the trial magistrate had, whether consciously or unconsciously, ignored the provisions of Section 10 of the Juveniles Act and effectively circumvented the need to consider any of the 'special matters' relating to the corroboration of the testimony of unsworn witnesses referred to above.

In doing so the trial magistrate has further ignored the many 'dangers' so carefully outlined in the judgment of Lord Morris in Hester's case (op.cit) where he said at p.219:

"The accumulated experience of courts of law, reflecting accepted general knowledge of the ways of the world, has shown that there are many circumstances and situations in which it is unwise to found settled conclusions on the testimony of one person alone. The reasons for this are diverse. 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. It must, therefore, be sound policy to have rules of law or of practice which are designed to avert the peril that findings of guilt may be insecurely based. So it has come about that certain statutory enactments impose the necessity in some instances of having more than one witness before there can be a conviction. So also has it come about that in other instances the Courts have given guidance in terms which have become rules. Included in such cases are those in which charges of sexual offences are made .... Also included in the types of cases above referred to are those in which children are witnesses."

There remains the appellant's third and final ground of appeal which directly raises the 'merits' of his conviction.

This ground necessarily entails a careful consideration of the prosecution's evidence in the case and the judgment of the trial magistrate.

In this latter regard State Counsel has not sought to support the "form" of the trial magistrate's judgment only its conclusion. If I may say so with that concession this Court entirely agrees. The trial magistrate's 'judgment' if it can be called that does not begin to meet the minimum statutory requirements set out in Section 155 of the Criminal Procedure Code which provides so far as relevant that:

"Every judgment shall ...... contain the point or points for determination, the decision thereon and the reasons for the decision ........"

(See also: per Grant C.J. in Chandar Pal v. R. 20 FLR 1 at p.4)

With respect to the trial magistrate it is improper to write a judgment merely accepting the prosecution's case and convicting an accused person without so much as a reference to the evidence led in the trial or to the demeanour and credibility of the witnesses or without considering any material inconsistencies and contradictions in the witnesses evidence (if any), and leaving it instead to State Counsel and the Appellate Court to try and marshal the evidence or fathom the magistrate's reasoning in seeking to support the conviction. Indeed so perfunctory is the trial magistrate's judgment that he did not even bother to record that he had considered all of the evidence.

Undoubtedly this was a case in which the only evidence before the trial magistrate was that which was produced by the prosecution and although it was 'untested' by cross-examination that does not mean that the trial magistrate is thereby absolved from writing a judgment in compliance with the relevant statutory provision, on the contrary, the appellant had pleaded not guilty to all 3 Counts at the beginning of the trial and had maintained his innocence throughout his police interview records (Exs. 3 and 4) and charge statement (Ex.5). Indeed in the course of one of his several interviews the appellant suggested that he had been 'framed' and even offered a 'motive' for it.

In the circumstances, if anything, the absence of any cross-examination would have made it doubly encumbent on the trial magistrate to have fully and carefully scrutinised the whole of the evidence of the prosecution witnesses before entering a conviction.

If the trial magistrate had done so he would not have so blithely and blindly accepted the prosecution's evidence as he appears to have done in his judgment.

He would have noted for instance that the only qualified medical witness who was called by the prosecution did not relate in his evidence what his detail findings were when he examined the complainant a month and a half after the last alleged incident other than a finding that her hymen was "not intact", whatever that might mean.

Similarly, the evidence of the Staff Nurse, who examined the complainant 4 days after the last incident, that the complainant's vagina admitted 2 fingers and that that was consistent with 'recent sexual intercourse' is at best 'suspect' when viewed in the light of her cross-examination and the complainant's own testimony of 2 prior instances of intercourse occurring in 1988 and early 1989 i.e. in this instance a plainly ruptured hymen is not necessarily evidence of sexual intercourse much less 'recent' intercourse. We also do not know the exact nature or extent of the 'vaginal injury' she detected or its possible cause and age.

In Paula Tukana v. R. Suva Cr. App. No. 39 of 1977 the former Chief Justice Sir Clifford Grant in quashing the appellant's conviction of Indecent Assault (asked, in the absence of proper medical opinion) of a 'slight tear' observed in the complainant's hymen:

"...... was it of a nature that could have been caused by a young girl washing herself rather vigorously in that area, using toilet paper carelessly, or by some other innocent action, or was it consistent with attempted penetration by a finger or a penis?"

Be that as it may the prosecution's evidence in this case was that sexual intercourse allegedly occurred between the complainant and the accused on 3 separate occasions -once in 1988 and twice in 1989 and at 3 different locations - in the 'girl's toilet'; 'the old classroom' and lastly, in 'the new school building'.

More particularly, the complainant's evidence (assuming it can be believed) makes it clear that the 1st incident in 'October 1988' allegedly took place in the girls' toilet; the 2nd incident in 'early 1989' allegedly occurred in the old classroom and the 3rd and 'final incident' on the '25th of May 1989' was allegedly committed in the new school building.

Furthermore this being a sexual offence the trial magistrate properly looked for corroboration of the complainant's evidence which he found: "not only in the medical evidence but by eye-witness accounts of other children".

The medical evidence has been earlier dealt with in this judgment and in my view has been found to be 'wanting' in several respects. There only remains the so-called eye witnesses' evidence to be considered.

In this latter regard the witnesses were (in order of call at the trial) Soko Filiti, Luisa Matoga and Esita Lesibulamaikinamuka. I shall deal with each in turn and on the assumption that were all properly sworn.

Soko Filiti recalled that "on May '89" she saw the accused having sex with the complainant whilst the complainant was lying on the floor naked and crying. This was "in the old classroom". However as earlier related by the complainant in her evidence the 'May '89' incident took place in the "new school building". They could not both be correct unless there were 2 incidents in May '89 but in that event the complainant's evidence that the 2nd incident occurred in "early 1989" would be incorrect.

Luisa Matoga and Esita on the other hand allegedly witnessed the '1st incident'. I say "allegedly" because neither witness testified to seeing any sexual intercourse taking place between the complainant and the accused. At most the combined effect of their evidence is that they saw both the complainant and the accused naked in the girl's toilet and the complainant was crying. Both were later told by the complainant that the appellant had forcibly had intercourse with her in the girl's toilet.

Even in regard to their evidence the complainant's testimony is materially contradictory as the following passage in her evidence dealing with the '1st incident' would tend to indicate, she said (in part):

"...... he laid me on the ground he took off his clothes and he had sex with me. He put his private part into my part - it hurt me - I was bleeding -this happened at the girl's toilet - this was seen by Luisa - I saw Luisa see me at that time." (my underlining)

In the light of that categorical statement it seems surprising that neither Luisa or Esita actually testified to seeing the commission of the alleged offence and does not the 'difference' reflect adversely on the credibility of the complainant? In any event assuming both girls were properly sworn can their evidence furnish to "corroboration"? With respect to the trial magistrate I venture to think not.

Lord Reid in D.P.P. v. Kilbourne (1973) 57 Cr. App. R. 381 in dealing with 'corroboration' said at p.409:

"In ordinary life we should be and in law we are required to be careful in applying this idea. We must be astute to see that the apparently corroborative statement is truly independent of the doubted statement. If there is any real chance that there has been collusion between the makers of the two statements, we should not accept them as corroborative. And the law says a witness cannot corroborate himself."

In so far as the '3rd incident' is concerned there does not appear to have been any corroborative 'eye-witness' to the incident. The appellant's conviction on this Count rests solely on the undisputed evidence of the complainant.

In the light of the several 'irregularities' that occurred in the appellant's trial and having regard to the misdirections of the trial magistrate in relation to the corroborative evidence the appellant's conviction must be considered unsafe and unsatisfactory.

The appeal is accordingly allowed, the convictions quashed and the appellant discharged.

(D.V. Fatiaki)
JUDGE

At Suva,
23rd May, 1991.

HAA0094.90S