Krishna v The State [1999] FJHC 95; Haa0035j.99b (23 August 1999)

Fiji Islands - Krishna v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0035 OF 1999

BETWEEN:

1. AVINESH KRISHNA
2. TUKOLI VISAWAQA
Appellants

AND:

Respondent

Mr. A. Sen for the 1st Appellant
2nd AppelAppellant in Person
Ms. A. Driu for the Respondent

JUDGMENT

On the 2nd of November, 1998 the appellants were jointly charged an offence of Rape before the Labasa Magistrate Court. They both pleaded 'not guilty' to the charge and were remanded in custody to await the trial. Eventually after numerous adjournments and several unsuccessful attempts to obtain bail, the trial began on New Year's eve and lasted for five (5) days spread over a fortnight in January 1999.

During the trial at which the appellants were unrepresented, the prosecution called three (3) civilian witnesses, - the complainant, her mother, and a former head teacher of the school which the complainant attended; and the interviewing and charging officers who exhibited the appellant's caution interview records (Exs. 3 & 7) and charge statements (Exs. 6 & 8) respectively. The birth certificate (Ex. 2) and a medical report of the complainant (Ex. 1) was also exhibited pursuant to Section 191 of the Criminal Procedure Code (Cap. 21). At the close of the prosecution case the appellants elected and gave sworn evidence and each called a witness in his defence, namely, the mother and wife of the second appellant.

At the close of the evidence the trial magistrate 'adjourned for considering of judgment for 2 hours or so'. Upon his return the trial magistrate delivered a lengthy Ruling in which he found the appellants 'guilty as charged'. Five (5) days later the appellants were sentenced each to five (5) years imprisonment and five (5) strokes of corporal punishment.

The appellants now appeal against their conviction and sentences on numerous grounds which may be condensed into the following:

(1) that the trial was not conducted fairly;

(2) the trial magistrate misdirected himself on the evidence of 'recent complaint' and 'corroboration';

(3) failed to properly evaluate the evidence in the case including that of the defence witnesses; and

(4) the sentences are harsh and excessive.

In arguing the appeal counsel for the first appellant sought to highlight the unfairness of the trial by referring to various unsatisfactory features, including - the failure of the trial magistrate to examine the complainant who was barely 14 years of age and described as a 'slow learner', as to her understanding of the oath before being sworn; his improper curtailment and confinement of the 1st appellant's cross-examination of the complainant; misdirections as to the evidence of 'recent complaint' and 'corroboration'; and his failure to deal with the various inconsistencies in the complainant's evidence as to the whereabouts of the 2nd appellant during the alleged rape by the 1st appellant.

The 2nd appellant for his part although unrepresented, ably argued his appeal and produced a four (4) page written submission in which he challenged the credibility of the complainant's evidence of 'recent complaint' and complains that '(the magistrate) didn't even try to understand what my wife and mother were explaining to the Court, that the complainant was not pulled from the road and there was no signs of rape in her and her physical appearance was normal'.

In this latter regard it might be beneficial to consider the form and contents of the trial magistrate's RULING which comprises ten (10) typed- written pages which may be apportioned as follows:

- 1 ½ pages are devoted to the complainant's evidence followed by:

- 5 ½ pages of references to cases and judicial dicta dealing with the 'elements of rape'; 'corroboration'; the approach of the courts to corroboration and the nature and relevance of evidence of 'recent or early complaint'. This general discourse on the law is then followed by:

- 1 page in which the trial magistrate makes two (2) findings of 'corroboration' provided by two items of evidence namely, the medical report (Ex.1) and the evidence of 'recent complaint' by the complainant's mother (P.W.2); and this is followed by:

- 1 page dealing in the abstract with the 'burden and standard of proof' in a criminal trial and;

- on the final page one encounters the trial magistrate's findings as to the guilt of the accuseds.

From the above analysis of the contents of the trial magistrate's RULING it is immediately plain that more than half of it (7 pages) was devoted to citing legal authorities and legal propositions and only three (3) pages relate to the evidence led before the court.

It is also plain that the sworn evidence of the appellants (which is no where set out in the ruling) was treated or considered (if at all) in the most summary dismissive manner. Not surprisingly the evidence of the defence witnesses (of which there were 2) did not even warrant a mention let alone any consideration in the entire RULING.

Indeed so perfunctory is the trial magistrate's judgment in dealing with the defence evidence that it is possible to extract the only two (2) sentences which directly refers to the defence. These are (at p. 2) where he says:

'The second accused denied raping her.'

and (at p. 10) where he says:

'I find the evidence of the two accused so inherently incredible that no reasonable person could believe it.'

There is no reference whatsoever to the 1st accused denying the charge in the trial magistrate's judgment.

In somewhat similar circumstances Thompson J. (as he then was) in setting aside the conviction in Mano Datt Sharma v. R. 15 F.L.R. 136 said at p. 139:

'In so far as the judgment indicates the learned magistrate's process of thought in considering the evidence adduced, there is nothing to show that he took the defence case, and the evidence in support of it, into consideration at all.'

and later his lordship said:

'In this case there may well have been good reasons for rejecting the evidence of the accused and of the witness called on his behalf. But there is nothing in the judgment to indicate that that evidence was taken into account at all. ... It is not simply a matter of implicitly rejecting evidence of an apparently far fetched story told by the accused (or his witness).'

Then there is the distinct probability that the trial magistrate in convicting the appellants failed to consider the evidence against each separately and, in failing to consider the second appellant's evidence and that of his witness, may well have bolstered the case against him by relying on evidence only admissible against the first appellant.

The relevant principle is set out in the following passage in Garrow and Spence's Criminal Law (4th edn.) at p.365 where the learned author's say:

'Where several ... accused are involved it is frequently necessary ... to separate the evidence applicable to ... each accused and to direct the jury to consider them separately.''

In similar vein the Fiji Court of Appeal said in Anthony Steven v. R. 17 F.L.R. 48 at p.54:

'We do not question for one moment that in a joint trial of several accused persons, a Magistrate should proceed in the same way as a jury or assessors would be directed to proceed. He must consider the case against each accused separately, being careful to distinguish the evidence admissible against one accused from that admissible against another. He must resist any temptation to bolster up a weak case against one accused by reference to evidence properly admissible only against some other accused (or by looking at the evidence as a whole).''

In the present case it was all the more encumbent on the trial magistrate to not only clearly identify and deal with the evidence against each accused separately given his assessment of the complainant's credibility and its apparent indivisibility, but also, because the nature of the defences differed in material respects. It was more than just a bare denial of opportunity.

Furthermore given the highly incriminating evidence of the 1st appellant on oath implicating his co-accused, the 2nd appellant, in the offence, it was encumbent on the trial magistrate to record or direct himself that although admissible as evidence against the 2nd appellant, nevertheless he should indicate either that he has ignored such highly prejudicial evidence or, at the least, made plain that he is aware of the dangers of acting on it unless corroborated (See: R. v. Prater (1959) 44 Cr.App.R. 83).

I turn next to deal with the corroborative evidence relied upon by the trial magistrate in his judgment, namely, the complainant's medical report (Ex. 1) and the mother's evidence.

As for the medical report (Ex. 1) appellant's counsel highlighted that on its face it bore two (2) different types of handwriting and was 'prepared 32 hours after the incident' and therefore the doctor's ageing of the complainant's injuries both of which were sustained 'within 24 hours' was plainly unreliable and or wrong and ought not to have been accepted by the trial magistrate in the absence of any clarification or explanation by the examining doctor who was not called as a witness. This point is well-taken.

State Counsel for her part in attempting to explain the various discrepancies in the medical report, accepted that 'on its own it cannot amount (in law) to corroboration unless the accused admits sexual intercourse' which neither did.

At most, the medical report confirms that sexual intercourse had recently occurred with the complainant but this falls well short of amounting in law to corroboration of an offence of rape committed by the appellants.

Quite plainly the trial magistrate misdirected himself when he said in his judgment (at p. 8):

'There was undoubtedly medical corroboration in this case.''

and (at p. 9):

'So in respect of the element of consent or non-consent the evidence of the complainant is well corroborated by medical evidence and other evidence (not identified) to show clearly lack of consent.''

As for the complainant's mother's evidence, the trial magistrate says in his judgment (again at p. 8):

'Even P.W.2's evidence (nowhere set out in the judgment) corroborates victims. She told her mother about the rape as soon as she met her.''

In this latter regard it is note-worthy that the only finding of 'recent complaint' in the trial magistrate's judgment relates to the complainant's claim that after being raped she had immediately gone to 'one Roshni's house' in the neighbourhood and related the incident to her (See: p. 41 & p. 2 of the judgment).

No finding of 'recent complaint' has been made relative to the complainant's report to her mother (See: her evidence also at p.41 & p.59) 'at about 5.30 p.m.' on the day of the incident (i.e. about 8 hours later) but in any event such a complaint even if recent could not in law amount to corroboration.

In Peceli Vosararawa v. R. 16 F.L.R. 202 which was referred to in the trial magistrate's ruling, Hammett C.J. in rejecting the suggestion that such a complaint could amount to corroboration said at p.204:

'In his judgment the learned trial magistrate said he accepted the evidence of Unaisi (the complainant) and held that it was corroborated by her complaint to her mother. He said that this was ample corroboration in law.

This is not so. The evidence of the female complainant was in fact not fully corroborated and her complaint to her mother was not corroboration in law (See: R. v. Evans 18 Cr.App.R. 123; R. v. Coulthread 24 Cr.App.R. 44).'
(my underlining)

In similar vein the Fiji Court of Appeal said in Mohammed Hamidullah Khan v. R 19 F.L.R. 133 at p.134:

'... it is well established that the evidence of complaints made by the victim of alleged sexual assault, if made at the first opportunity and to a person in authority, are admissible in evidence, not as corroboration of the girl's story, but for the purpose of showing consistency in her evidence.'
(my underlining)

Plainly again on this aspect the trial magistrate misdirected himself as to what evidence was capable of affording corroboration in law.

Furthermore before evidence of 'recent complaint' can to be admissible and relied upon, the person to whom the complaint was made must be called as a witness to testify as to the nature and circumstances under which the complaint was made by the complainant.

In the present case despite Roshni not being called to testify, the trial magistrate said (at p.8):

'I have come to the conclusion that there was an early complaint by the victim.''

This conclusion was unwarranted as being based solely on the complainant's self-serving evidence and cannot be relied upon as evidence of 'recent complaint'. This too was a misdirection.

In light of the foregoing I am firmly of view that it would be unsafe to allow the appellants convictions to remain. The appeals against conviction are allowed, the convictions are quashed and the sentences set aside.

In the exercise of the Court's powers under Section 319(1) of the Criminal Procedure Code (Cap. 21) and bearing in mind the guidance provided in the judgments of the Fiji Court of Appeal in Shinodra v. The State (1988) 34 F.L.R. 135 and Dhani Chand v. R. Cr. App. 35 of 1979 (unreported), I order a retrial before a different magistrate.

D.V. Fatiaki
JUDGE

At Labasa,
23rd August, 1999.

Haa0035j.99b