Vauvau v The State [1997] FJHC 250; Haa0014.97l (19 November 1997)

IN THE HIGH COURT OF FIJI
(AT LAUTOKA)
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0014 OF 1997L

BETWEEN:

RUPENI VAUVAU & OTHERS
APPLICANTS

AND:

STATE
RESPONDENT

Dr Sahu Khan for the Applicants
Mr Auld for the Respondent

Date of Hearing: 14th October 1997
Date of Ruling: 19th November 1997

RULING

On the 21st March 1997 the four appellants were convicted on their own admission of rape. They were sentenced to five years imprisonment and 6 strokes of cane.

The Appellants appealed both the conviction and the sentence.

Dr SAHU KHAN argued the appeal. Argument was only taken on the additional grounds of appeal. This was not to say that the other grounds were abandoned. Dr SAHU KHAN preferred to leave those to later if necessary. Neither the Court nor the State had any objection to this as the additional ground raised the major argument.

The indictment before the Learned Magistrate was as follows:

"CHARGE
(Complaint By Public officer)

Statement of Offence (a)

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.

Particulars of Offence (b)

RUPENI VAUVAU, EPELI LABALABA, PENISONI KUBU and SIONASA VUNISA, on the 15th day of March, 1977 at Nadala, Nadarivatu in the Western Division had unlawful carnal knowledge of a girl namely ETA NARARA without her consent."

On the 21st March all appeared before Mr KATONIVUALIKU the Learned Magistrate. They were unrepresented. The Court Record shows that the Charge was read and explained and that the Appellants all advised the Learned Magistrate that they understood the charge.

The Appellants elected a Magistrates Court trial. They advised the Magistrate that they did not require legal representation.

The Appellants again advised the Court that they understood the Charge and they admitted the Charge.

The facts were read out to the Court (I shall return to these in due course). The accused then advised the Court that they understood the facts and they admitted them.

The Learned Magistrate convicted the Appellants on their own admission.

Thus, the appellants are appealing from a conviction resulting from a plea of guilty. As a consequence, the first hurdle for the Appellants to overcome is to have this Court set aside the plea of guilty.

The principles of the Court must apply to set aside the guilty plea are well known. They apply irrespective of whether or not the Appellants was represented, but, naturally enough, most often come to be applied where the Appellant was in fact unrepresented

Fiji Court of Appeal decision IRO -v- R (12 FLR 104) and of GRANT C.J. in GYAN DEO -v- R 22 FLR 1 establish the principles. They are:

1. In the case of an unrepresented accused, the trial Judge (or Magistrate) must exercise the greatest vigilance to ensure that the accused person fully comprehends what the plea of guilty holds.

2. The plea of guilty must be in unmistakable terms with an appreciation of the essential elements of offence.

3. The admitted facts must support the elements of Charge.

Looking at the record, the Learned Magistrate appears to have taken great care to see to it that the accused were fully informed as to the Charge and that they understood it. Full facts were put which, when put alongside the explanation of the Charge, would support that charge. These facts were admitted.

As I read the record, it will appears the plea was made in unambiguous terms with a full knowledge of its effect and of the necessary particulars and facts supporting the charge. Thus, in terms of the general principles applicable, I see no reason to set aside the guilty plea. I note that the submission of counsel for the Appellants, in respect of Appellant 4 (SIONASA) were that the facts before the Learned Magistrate did not establish a lack of consent. I think, however, that when facts are read as against particulars of the charge, (which clearly sets out the lack of consent), it is apparent that the Appellant SIONASA was well appraised of and must be taken to admit to the essential elements of lack of consent. I do not see any merit in this submission.

That is not the end of the matter. The additional ground of appeal reads:

"1. THAT in any event the conviction of the Appellants cannot be sustained in as much as the charge was bad for duplicity in that various purported allegations of rape were charged in one count whereas in view of the fact that separate incidents of rape were involved pertaining to different accused at different time there ought to have been a separate count of rape pertaining to each incident or each accused involved in the relevant incident.

2. THAT the Learned Trial Magistrate had no jurisdiction to deal with the rape charge in question."

What this ground says is that the charge, being bad for duplicity, was invalid and hence could not be pleaded to. The Magistrate in other words, should not have dealt with. That is to say; there is no proper charge, thus no proper arraignment; thus no proper plea; and thus no proper conviction. (This is the line adopted by Lord LANE C.J. in R v. MORAIS (1988) 4 ALL ER 161 and 165. Although the facts were different, the principle is the same).

In short, if the Charge is bad for duplicity the whole proceedings are similarly tainted and a guilty plea cannot stand. I must say that, as a general principle, I agree with that proposition (see R -v- MORAIS supra). But the question remains - is the charge bad for duplicity in this instance as the argued by the Appellant.

In support of his submission, Counsel for the Appellant referred me to a recent decision of LIVINIA TAUISA & OTHERS -v- STATE CR. APP 30/97 (Suva). That case, it is submitted is on all fours with this. Counsel for the Appellant's arguments very closely followed the Learned Judge's reasoning.

Counsel for the State has submitted with greatest of respect, that I am not bound to follow the TAUISA's decision. He referred me to Section 120 and 121 of the Criminal Procedure Code (CPC). His submission is that there is a proper joinder as the offences all arose out of the same set of circumstances and, that the indictment is not bad for duplicity.

Sections 120 and 121 of the CPC read:

"120.-(1) Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts or form, or are part of, a series of offences of the same or a similar character.

(2) Where more than one offence is charged or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count.

(3) Where, before trial, or at any stage of a 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 of offence in the same charge or information or that for any other reason it is desirable to direct that the person be tried separately for any one of more offences charged in a charge or information, the court may order a separate trial of any count or counts of such charge or information.

121. The following persons may be joined in one charge or information and may be tried together, namely-

(a) persons accused of the same of fence committed in the course of the same transaction;

(b) persons accused of an of offence and persons accused of abetment, or of an attempt to commit such offence;

(c) persons accused of different offences provided that all offences are founded on the same facts, or form or are part of a series of offences of the same or a similar character;

(Substituted by 11 of 1972 s.3);

(d) persons accused of different offences committed in the course of the same transaction."

The facts concern a gathering at the home of one MEREULA in the village of Nadala, on the evening of the 15th March 1997. I will set out the salient facts as they appear in the Court Record:

"At about 8.00pm Complainant went to the kitchen to boil some milk for the baby. Accused 1 went to the kitchen and blocked her mouth with one hand and dragged her to the cassava patch, about 9 metres away. He forced her to the ground, removed her panty and forcefully had sexual intercourse with her till he ejaculated.

Complainant came back and took the milk to the bedroom and informed Mere. At 10.00pm the hurricane lantern just went 'off'. The Complainant went to the kitchen to light the lantern, Accused 2 was already there, Accused 2 was already there, Accused 1 also joined them, Accused 1 blocked the Complainant's mouth, they pulled her to the sitting room and led her to another bedroom. Another juvenile joined them with Accused 3 they forced the Complainant to the floor, undressed her. Accused 2 blocked her mouth and Accused 1 had another sexual intercourse. The juvenile and Accused 3 were holding the legs. Accused 2 had his turn till he ejaculated; later Accused 3 and the juvenile.

The Complainant was very weak, she stayed in the room when the three accused came into the sitting room. Accused 1 went into the room where the Complainant was still naked and looking for her clothes. Accused 4 went in. Complainant wanted to yell but was warned and he slapped her. She was not sure whether Accused 1 or Accused 4 slapped her because it was dark. Accused 4 then had sexual intercourse with the Complainant until he ejaculated. After that, they all left the house."

Following with respect to Counsel for the Appellant, whilst the ground of appeal mentioned the duplicity, his argument also touched on (and perhaps crossed over into) issues of joinder.

I shall approach both of those issues in this ruling.

Before doing so I think it is necessary to refer to GRANT CJ ruling in DPP -v- ETUATE CAMA 21 FLR p. 9 at p. 11 when His Lordship said:

"Sections 170 of the Criminal Procedure Code has reference to offences of a kindred nature to rape in respect of which a court may convict on a charge of rape although an accused was not charged with them; and on the evidence before the trial Magistrate the view he formed that the respondent should not be convicted of any of the kindred offences was a correct one. However the trial Magistrate's conclusion that the respondent must be acquitted was a clear misdirection.

It is apparent that, in concentrating on the kindred offences referred to in section 170 of the Criminal Procedure Code, the trial Magistrate failed to direct his mind to section 21(1)(b) of the Penal Code which provides, inter alia, that every person who does an act for the purpose of enabling or aiding another to commit a particular offence is deemed to have taken part in committing that offence and to be guilty of the offence and may be charged with actually committing it. Thus, where section 21(1)(b) of the Penal Code applies, a person is a principal offender, and the sections of the Criminal Procedure Code relating to convictions for offences other than those charged do not fall to be considered.

The evidence adduced by the prosecution and accepted by the trial Magistrate proved conclusively that the respondent aided the first accused in committing rape and had the trial Magistrate properly directed himself the only course open to him was to convict the respondent as charged."

Note: Section 170 of the CPC is now Section 176.

To my mind, that puts the point succinctly. It need not matter if the accused was the actual rapist or the aider and abetter - the Charge can well be the same. That is to say, pursuant to Section 21(1)(b) a person who may have not committed the actual physical act of rape, but aided in a rape and thus can be convicted of rape as a principal offender.

DUPLICITY (To which Section 20 applies) is defined in ARCHBOLD 43 Ed para 1/57 at p.46 as:-

"The indictment must not be doubled; that is to say, no one count on the indictment should charge the Defendant with having committed two or more separate offences."

Fiji Court of Appeal in ALIPATE VOKAI OTHERS -v- R (CRIMINAL APPEAL 24/81 1981 FCA p.60 at p.66) adopted this definition when the Learned Judges said in "We are in agreement with the Learned Judge in the Supreme (High) Court that there was no duplicity; as he states, duplicity only arises when a person is charged in one count with two distinct offences."

I do not consider that the question of duplicity arises in the count before me. Each Appellant has been charged with the actual act of rape pertaining only to his actions. It would not be possible for one Appellant to commit the act of rape for some other appellant. The only instance that the indictment could be said to be duplicitous is if the rationale of GRANT CJ in CAMA's case is applied and one treats acts of aiding and abetting as acts of rape. Thus, for example, the Appellant RUPENI could be said to have committed 3, and possibly 4, offences on the facts as appeared before the Learned Magistrate. This of course was not argued by Counsel for the Appellant. To do so would be to put his client in much deeper strife. Nor was it put forward by the Crown.

The indictment must, in the interests of justice, be read 'down' to the benefit of the appellant to allege only one distinct offence of the actual physical rape by penetration. To do otherwise by application of some technical argument would be a gross miscarriage of justice.

The indictment is not, in my view bad for duplicity. In coming to this decision, I am assisted by the ruling of the House of Lords in DPP -v- MERRIMAN (1972) 56 CR. APP. R 766 and in particular the comments of Lord MORRIS of Borth-y-Gest at p.776 when his Lordship said:

"It is furthermore a general rule that not more than one offence is to be charged in a count in an indictment. By rule 4 of Schedule 1 to the Indictment Act 1915 it is provided as follows: "A description of the offence charged in an indictment, of each offence so charged, shall be set out in the indictment in a separate paragraph called a count." The question arises - what is an offence? If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling house of B steals then different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying commonsense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down, but I consider that clear and helpful guidance was given by Lord Widgery C.J. in a case where it was being considered whether an information was bad for duplicity (see Jemmison v. Priddle (1971) 56 Cr. App. R. 229 at p.234; (1972) 2 W.L.R. 293 at p.298). I agree respectfully with Lord Widgery that it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. It must, of course, depend upon the circumstances."

In his Lordship's comments were approved and applied by the Fiji Court of Appeal in SHANTILAL & OTHERS -v- R (Cr. App, 10 of 1978, 1978 FCA Vo. 575 at 599).

I am in no doubt that it is both common sense and just that I treat the indictment as alleging only one offence per accused.

JOINDER (to which S.121 applies) is perhaps a little more complex. It is distinct, however, from the question of duplicity. On reading the additional ground of appeal and on hearing the submission, it appeared to me, with respect, that some confusion has arisen. I might say, in passing, that it is understandable in this difficult area.

Our criminal law has long recognised that all persons engaged in an offence can be joined on the one count. The underlying theory is that a charge against two or more Defendants in single count is joint and several (See ARCHBOLD supra para 1/70 p. 56). The difficulty occurs, and this is Counsel for the Appellant's point, when 2 or more accused are charged on the one count when the offences, though the same, occurred at different times.

As I have held that the indictment is not bad for duplicity because each accused was charged for their own separate act of actual rape, the problem of joinder comes up.

Counsel for the Appellant argues that each rape is a separate incident in itself (my emphasis). When the act is completed by one accused, a separate incident has occurred. When the act is then committed by another accused some time later (no matter how soon), it is a separate incident and thus a separate offence. Thus, it is argued the separate act, and therefore the separate offence, cannot be joined on the one indictment.

Counsel for the Crown submits Section 121 (and in particularly (c) and (d)) provide for this eventuality.

Counsel for the Appellant met this argument with the submission that, as a matter of fact, each different offence of rape can never be based on the same facts. For example, on the facts before the Learned Magistrate, the precise facts supporting a charge against Accused 1 are obviously different from the precise facts acts supporting a charge against Accused 2 and so forth. This argument is highly technical and puts a very narrow interpretation on Section 121(c) and (d) in particular.

With respect to Counsel, I do not consider this argument to be maintainable given the more modern approach to criminal law adopted by the Fiji Court of Appeal in VOKAI's case.

The Learned Judges of Appeal said on p.8 of VOKAI's case (p.67 in 1981 FCA Vol):-

"In our opinion section 121(c) and (d) dare to be construed in the light of the words used by Lord Diplock in the House of Lords in D.P.P. v. MERRIMAN (1972) 56 Cr. App. R.766 at 796-

"Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment. Where such a count was laid against more than one defendant, the jury could find each of them guilty of one offence only; but a failure by the prosecution to prove the allegation, formerly expressly stated in the indictment but now only implicit in their joinder in the same count, that the unlawful acts of each were done jointly in aid of one another, did not render the indictment ex post facto bad or invalidate the jury's verdict against those found guilty. To quote Hawkins again: -On such indictment ................. some of the defendants may be acquitted, and others convicted; for the law regards the charge as several against each, though the words of it purport only a joint charge against all.""

In my opinion the offences charged against all accused do fall within the scope of that description by Lord Diplock as approved and applied by the Learned Judges of Appeal. Consequently I do not consider the indictment to be bad for mis-joinder.

Thus the additional ground of appeal fails.

I will now hear Counsel for the Appellant and the State on the other grounds for appeal and sentence. I will adjourn this matter to the Deputy Registrar to fix a date to argue these additional points.

In conclusion I might say that on a close reading of TAVISA's case, the rationale behind rejecting the indictment was for uncertainty (See p.3 thereof). This, to my mind, cross-refers to the reduction by the Learned Magistrate of one charge against the 2nd Appellant (Accused) from rape to attempted rape, but keeping the same indictment. Without going into it in any degree, I can see how it could be held such would infringe. But, this is not the case in the matter before me. TAVISA's case is clearly distinguishable, even if it were binding on me.

With the greatest of respect to both Counsel, the conduct of this appeal would have been immensely assisted by a greater degree of preparation of argument. Even if my ruling herein were to be subsequently held to be incorrect, it is a matter of some surprise that TAVISA's case was only authority I was referred to. I would expect far greater assistance from Counsel in the future.

JOHN D. LYONS
JUDGE

HAA0014.97L