Siga v The State [1996] FJHC 50; Haa0029d.96b (16 September 1996)

Fiji Islands - Siga v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Labasa

Appellate Jurisdiction

CRIMINAL APPEAL NO. 0029 OF 1996

Between:

BONEFASIO SIGA
Appellant

AND:

THE STATE
Respondent

Appellant in Person
Ms. L. Laveti for the State

REASONS FOR DECISION

On the 14th of August 1996 the appellant's conviction was quashed and his sentence set aside for reasons which I now deliver.

The appellant was charged in the Magistrate Court, Savusavu with an offence of Rape. He pleaded 'not guilty' and elected a Magistrate Court trial which was held over 2 days in late March 1996. On 18th April 1996 the trial magistrate delivered his judgment convicting the appellant and sentenced him to 4 years imprisonment.

The appellant subsequently appealed against both his conviction and sentence but it is only necessary in this judgment to deal with the grounds of appeal against conviction which may be reduced to the following:

(1) The trial magistrate misdirected himself on the question of corroboration; and

(2) The trial magistrate erred in his treatment of the evidence.

As for 'corroboration' the learned trial magistrate in his judgment said in his only reference to the word, (at p.29 of the record):

"The medical report and the evidence given by the doctor corroborate and substantiate the complainant's story."

The medical report (Exhibit 1 at pp.37 & 39) after detailing various 'injuries' noted on the complainant's private parts concluded with 3 findings:

"(a) Loss of virginity;

(b) Forceful penetration; and

(c) Recent vaginal intercourse."

The doctor (P.W.1) who examined the complainant the following afternoon, testified at the trial that "the injuries was (sic) committed with forceful intercourse". In cross-examination however he conceded (that):

"The injuries could have been sustained even if the sexual intercourse had been with consent."

In James v. R. (1971) 55 Cr. App. R.299 Viscount Dilhorne in delivering the judgment of the Privy Council, said at p.302:

"Where the charge is rape, the corroborative evidence must confirm in some material particular that intercourse has taken place and that it has taken place without the woman's consent, and also that the defendant was the man who committed the crime."

(my underlining)

Then later in rejecting the trial judge's treatment of the medical evidence in the case, his lordship said at p.303:

"True it is that the medical evidence ... confirmed (the complainant's testimony) that intercourse with her had taken place but there was no medical evidence that the intercourse had taken place without her consent; and the judge directed the jury that, if they accepted that evidence, it could amount to corroboration ... In their Lordships view, this direction was entirely wrong. Independent evidence that intercourse had taken place is not evidence confirming in some material particular either that the crime of rape had been committed or, if it had been, that it had been committed by the accused. It does not show that the intercourse took place without consent or that the accused was a party to it."

Similarly in this present case, in the light of the doctor's concession and the above judicial dicta, it need hardly be said that both 'the doctor's evidence' and 'the medical report' (which was improperly admitted per Grant Ag.C.J. in Colin Raymond Langford v. R. 20 F.L.R. 11 at 12), were only capable of confirming the complainant's testimony that sexual intercourse had occurred, but not, that such intercourse was without her consent or that the appellant had committed it. The trial magistrate in his judgment appears however to have treated it otherwise. The judgment begins with a summary of each witness's evidence at the trial including the appellant and his witness, and then (at p.29), the trial magistrate sets out two ingredients of the offence of Rape as follows:

"firstly that the accused had sexual intercourse with the complainant and secondly that such intercourse took place without her consent or with consent obtained by force."

(my underlining)

The above 'ingredients' although strictly conforming to the statutory definition of the offence of Rape as set out in Section 149 of the Penal Code (Cap.17) is not in accordance with the statement of the law as expressed in Ilaitia Koroiciri v. R. Cr. App. No. 43 of 1979 (unreported) where the Fiji Court of Appeal said:

"..., in the definition of rape as quoted above no intent is stated but a long line of cases has settled the law that not only must the fact of intercourse without consent be proved but it also must be proved that the accused intended to commit the crime. The recognised mental element has been stated to be that the accused had actual knowledge of the fact that the woman was not consenting or was determined to have intercourse with her whether she was consenting or not. The intent of the accused and the act (namely that the woman was not in fact consenting) must both concur to constitute the crime."

Quite plainly in setting out the 'ingredients' of the offence of Rape, the trial magistrate misdirected himself in omitting any reference to the 'mens rea' of the offence, however given that the appellant's defence amounted to a complete denial of sexual intercourse with the complainant, the omission would not in my view, be fatal to the appellant's conviction.

Returning then to the trial magistrate's judgment. After setting out the 'ingredients' of the offence the trial magistrate begins his analysis of the evidence by dealing with 'the first ingredient'. Then at p.30, without in anyway discussing the evidence relating to the 'second ingredient', the trial magistrate merely states:

"Considering the victims evidence well substantiated by the medical evidence I hold that forceful penetration had taken place against her consent."

These final three words represent in my view, something of a 'quantum leap', when one considers the doctor's unequivocal concession in cross-examination. Furthermore, in so doing, the learned trial magistrate seriously misdirected himself and failed to consider a material question raised in the appellant's submission relating to 'consent' i.e. how did the complainant, who had gone to fetch water with a younger brother, come to be alone that evening in the company of the appellant at the tap (in this regard see complainant's evidence at the middle of p.13 and the appellant's evidence at the top of p.19 of the record).

Had the trial magistrate properly considered this question, he would have realised that the complainant was not questioned about this matter in any detail, and he would have appreciated its significance in considering the appellant's sworn testimony (at p.19) to the effect that the complainant herself had voluntarily remained behind (after her brother had left and despite being chased away) because 'she wanted to chat' with the appellant.

Finally the trial magistrate failed to consider in that context, the possible existence of a 'motive' on the part of the complainant, in seeking to excuse or explain away her late return home that evening, to falsely albeit understandably, implicate the appellant.

The trial magistrate did deal however with an apparent inconsistency that arose between the doctor's evidence and the complainant and her mother's evidence, regarding the bleeding from the complainant's vagina. The doctor said it was not menstrual bleeding (p.9) whereas the complainant and her mother said it was (pp.15 & 17 respectively). The trial magistrate in resolving the inconsistency, resorted to an unwarranted generalisation wholly unsupported by any evidence, that the complainant was not only inexperienced in such matters (quaere: sexual intercourse or menstruation?) but was also excited and frightened.

The appellant also complains about the trial magistrate's treatment of the defence witness's evidence when he said in his judgment (at p.33 of the record):

"Even if this evidence is true it does not affect in any way the prosecution's story; in fact it in a way confirms it ..."

The defence witness's evidence which is recorded at p.21 of the court record, is to the effect that the complainant was questioned and beaten on the night of the incident after she had returned home and during the course of which she was heard to say "... that even if she is beaten to death she would not tell the name of the person" she went out with that night.

With all due regard to the trial magistrate's view, a complainant/victim who would suppress the name of her alleged attacker in the face of being beaten to death, suggests at the very least, to my mind, that she was a consenting party to whatever occurred between her and her alleged attacker whose identity she was intent on protecting.

Be that as it may State Counsel at the hearing of the appeal sought to rely on the complainant's 'recent complaint' and 'distressed condition' as testified to by her mother as providing some corroboration of second ingredient namely, the absence of consent.

As for 'recent complaint', the law has been settled since R. v. Evans (1924) 18 Cr. App. R. 128 where it was said at p.124:

"It has been pointed out again and again in these cases that evidence of a complaint by the prosecutrix is not corroboration of her evidence against the prisoner. It entirely lacks the essential quality of coming from an independent source."

On the other hand whilst a victim's 'distressed condition' may in certain narrow circumstances amount to corroboration, Lord Parker C.J. has said: "... if a girl goes in a distressed condition to her mother and makes a complaint, while the mother's evidence as to the girl's condition may in law be capable to amounting to corroboration, quite clearly the jury should be told that they should attach little, if any, weight to that evidence ..." (R. v. Redpath) (1962) 46 Cr. App. R. 319 at p.321).

A fortiori where there exists, as in this case, an 'innocuous' cause or reason for the complainant's distress such as her fear of chastisement on returning home alone and late from fetching water.

In all the circumstances bearing in mind the serious misdirection on corroboration and the numerous failures on the part of the trial magistrate in his consideration of the evidence in the trial, it was inevitable that the appellant's conviction should be quashed and accordingly it was.

D.V. Fatiaki
JUDGE

At Labasa,
16th September, 1996.

Haa0029d.96b