Bolatiki v State [1997] FJHC 124; HAA0035D.1997S (3 September 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.0035 OF 1997

Between

MAIKA BOLATIKI
Appellant

And

THE STATE
Respondent

Counsel: Mr. I. Tuberi for Appellant
Ms.R.Olutimayin and Mr.K.Tunidau for Respondent

Hearing: 3rd September 1997

Decision: 3rd September 1997

ORAL DECISION OF PAIN J

This is an appeal against a conviction in the Magistrates Court on a charge of indecent assault.

The appellant, a school teacher was charged on two counts of indecent assault on two separate pupils on two separate days. Following a defended hearing, the learned Magistrate found the accused not guilty on count 1 and guilty on count 2.

The learned Magistrate very properly dealt with the two charges separately and considered each on its own evidence. On Count one he said there was no corroborative evidence, the complainant did not tell anybody about the alleged incident assault for a month and her evidence was inconsistent in some respects with the evidence of her aunty. He said that this made her evidence "less than credible" and he was "left in doubt as to the truth or otherwise of her allegation" which was denied by the appellant. He therefore acquitted the appellant on that count.

However, for the reasons given in his decision, the learned Magistrate found count 2 proved. It is the conviction on that count that is now under appeal.

The complainant was a 14 year old school girl at the time of the incident. She was one of 18 students in a classroom sitting an examination. The appellant was supervising the examination. The complainant was sitting at a desk in the front row. She said that the appellant came and stood beside her on her left. She looked up and the appellant touched her breast with his left hand. She sat up and the accused slid his left hand down her stomach and "right to her private part". He then rubbed her private part.

Laisani, a school friend of the complainant also gave evidence. She met the complainant after the examination. She said [p.27 of the record]:

"I knew something was wrong. Her eyes were puffy red. She told me she wanted to vomit. I asked her what happened. She was crying.

She didn’t mention the name. She said the exam supervisor fiddle around with her breast and was rubbing his hand on her private parts. This was done during the exam."

Evidence was also given by a police officer who took a statement from the appellant six days after the alleged incident. In that statement the appellant agreed that he had supervised the exam and denied that he had indecently touched the complainant in the manner alleged by her. The appellant also gave evidence at the hearing. He said that during the examination he spoke to the complainant to clarify a correction that had to be made to the exam paper. That was done in response to her raising her hand. He said that nothing else occurred. He denied touching her breast or private parts.

In the written submissions to the learned Magistrate, in the grounds contained in the Petition of Appeal and at the hearing of this appeal, counsel for the appellant has dealt extensively with the issue of corroboration. I do not find it necessary to review those submissions at length. The law on this topic is well settled.

It is a rule of practice that has become virtually equivalent to a rule of law that it is dangerous to convict a defendant on a charge for a sexual offence on the uncorroborated evidence of the complainant. Corroboration must be evidence given or facts proved by someone other than the complainant. It must be independent testimony which confirms in some material particular the complainant’s evidence that the offence was committed by the defendant.

Although it is dangerous to convict on the uncorroborated evidence of a complainant, this does not mean that a defendant can never be convicted in the absence of corroboration. To do that the Court would need to bear in mind the warning that it is dangerous to do so. It must then be fully convinced of the truth of the complainant’s evidence. It would be necessary for the Court to accept her evidence, reject the evidence of the defendant and on a consideration of all the evidence find the charge proved beyond reasonable doubt.

The only other legal issue I need mention is the use that the Court can make of the evidence of the complainant’s friend Laisani in this case.

Such evidence of what an alleged victim said in the absence of the defendant would not normally be admissible at the trial. However, in prosecutions for sexual offences, there is an important exception to that rule. Evidence of a complaint made by a girl or woman promptly after the alleged commission of a sexual offence upon her, is admissible. However, that complaint is not corroboration of the facts complained of. It does not come from an independent source but originates from the complainant herself. It is only admissible as evidence of the credibility of the complainant’s testimony - as showing consistency of her conduct at the time, with the story told by her in the witness box. That is the only purpose for which the evidence can be used - not as evidence of what happened, but as a factor to be considered in determining the truthfulness of the complainant.

It is not necessary for me to deal with the extensive submissions made by counsel for the appellant that the evidence of other witnesses did not amount to corroboration of the complainant’s allegations in this case. The fact is that the learned Magistrate did not find any evidence in the case that was capable of or did in fact amount to corroboration. Accordingly, the warning applied. In coming to his decision he was obliged to bear in mind that it was dangerous to convict the accused.

As counsel for the appellant pointed out, the question of the credibility of the complainant then arose as the crucial issue in this case. As I earlier mentioned, it is still competent for the Court to convict on the complainant’s uncorroborated evidence in certain circumstances.

It is necessary for this Court to consider the decision of the learned Magistrate in the light of the evidence and legal issues I have mentioned to see whether he was justified in finding the charge proved.

Early in his decision the learned Magistrate correctly and properly reminded himself of the onus on the prosecution to prove the accused’s guilt beyond reasonable doubt.

On the issue of corroboration he later said [at p.39 of the record] "For the record, the court has warned itself of the need for corroborative evidence to verify the complainant’s sexual allegations, and that, the court, could convict, if bearing in mind the above warning, accepts the complainant’s evidence as credible".

That is a satisfactory statement of the law on this topic. A more extensive consideration, such as I have earlier given, is not necessary for a decision in a summary trial.

The learned Magistrate then dealt with Count 1 which he found had not been proved.

He then gave separate and independent consideration to Count 2 saying that "the facts were somewhat different". In doing so he placed particular significance on the overall conduct of the complainant after the alleged incident and particularly the evidence of the complaint made by her to her school friend Laisani. He properly noted the conflict in that the "accused denied PW3's allegation on oath". He said that the recent complaint "appeared to show consistency in PW3's story" and although not strictly corroborative evidence it tended "to show the complainant was upset about the alleged indecent assault". I interpolate here that the learned Magistrate was not using the distress as corroborative evidence but merely as an integral part of the complaint made to her friend. The learned Magistrate then said: "The nett effect of the above is that it lends credibility to PW3's version of events."

In saying that the learned Magistrate was clearly assessing the value of the complaint evidence in a proper fashion and was not relying upon it as corroboration of the complainant’s testimony.

The learned Magistrate then said [at page 41]:

"Although, strictly speaking, there was a lack of corroborative evidence to verify PW3's allegation, I accept PW3's version of events. In my view, she was telling the truth, despite the accused’s sworn denials. I have carefully observed all witnesses’s demeanour in Court in an endeavour to discover the truth. Looking at the facts coldly and objectively, I accept PW3's evidence."

Counsel for the appellant submits that, on the evidence the learned magistrate ought not to have come to this conclusion on the credibility of the complainant. He referred to a number of matters such as the incident being alleged to have occurred in broad day light in the classroom with others present, no person present being called to give evidence of witnessing the incident or hearing anything and the unlikelihood of such an occurrence passing unnoticed.

However, the actions of the appellant as described by the complainant in her evidence were something that would not necessarily have created attention. The other pupils in the room were writing their examination papers. The Appellant was standing alongside the complainant in the front row and such conduct would be expected to have been done as surreptitiously as possible. Moreover, the learned Magistrate said that he had "carefully observed all witnesses’s demeanour in Count in an endeavour to discover the truth" and had "looked at the facts coldly and objectively". It was not necessary for him to deal with every factual submission made by the defence.

The learned Magistrate made a clear finding that he accepted the evidence of the complainant as truthful. An appellant Court would need very compelling and cogent reasons to interfere with that finding. There are no grounds to do so in this case. The learned Magistrate had borne in mind the warning of the dangers in convicting without corroboration and nevertheless found the complainant to be a truthful witness whose evidence proved the charge despite the denial of the appellant.

The conviction on that basis was correct in principle and a proper finding. The learned Magistrate applied correct legal principles and the conviction is supported by the evidence. There are no grounds for this Court to interfere.

The appeal against conviction is dismissed.

Justice D.B. Pain