Prasad v The State [2002] FJHC 93; HAA0008J.2002S (22 March 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA008 OF 2002S

Between:

RAJNESH RAJESHWAR PRASAD
Appellant

And:

THE STATE
Respondent

Counsel: Mr A.K. Singh for Appellant
Ms J. Hamilton-White for Respondent

Hearing: 15th March 2002
Judgment: 22nd March 2002

JUDGMENT

On 16^th January 2002, the Appellant was convicted, after a trial, of the following offence:

Statement of Offence

RAPE: Contrary to Section 149 of the Penal Code, Act. 17.

Particulars of Offence

RAJNESH RAJESHWAR PRASAD s/o JAGDISHWAR PRASAD on the 1^st day of February 2001 at Nasinu in the Central Division had unlawful carnal knowledge of ANNIES ANSHU WILLIAM d/o CHARLES WILLIAM without her consent.

On 25^th January 2002 the Appellant was sentenced to five years imprisonment. He now appeals against conviction on the following grounds:

“(a) That the Learned Trial Magistrate has erred in law and facts when she convicted the Appellant without any corroboration.

(b) That the Learned Trial Magistrate has erred in law and facts when she failed to consider the inconsistent evidence of the complainant and/or that she failed to consider that the complainant admitted telling lies on oath and as such no reasonable tribunal could believe her evidence and convict the Appellant.

(c) That the Learned Trial Magistrate has erred in law and facts when she failed to explain or give reason why she believe the complainant and did not believe the defendant.”

The Appellant was charged on the 3^rd of February 2001, and the trial commenced on 24^th April 2001. The prosecution called the complainant, Annies Anshu Williams and six other witnesses. The facts as led in evidence, were that the complainant, a 17 year old girl, was living with her parents, two brothers and two sisters in a ground floor flat, owned by the Appellant’s parents. The Appellant’s family lived on the first floor. The evidence was that the Appellant wanted to marry the complainant, but that his parents were opposed to the match. The complainant then became engaged to a boy from Labasa.

On the 1^st of February 2001, the complainant said she stayed at home because she was ill, and that she was alone at home. She went out to the back of the house to take the clothes in from the washing line. She saw the Appellant outside, and said that he swore at her, and asked her why she wanted to marry another boy. She then began to enter her house when the Appellant pushed her inside and kicked the door shut. She said that he then dragged her to the kitchen where he picked up a kitchen knife, and told her to go to the bedroom. She then said that he raped her after slapping her on the cheeks and punching her stomach several times. She said she had never had sexual intercourse before, and that after having sexual intercourse once, he tried to repeat the act several times. She heard her brother Rajeshwar come to the door and knock, and call her name but the Appellant threatened her again with the knife. She said he dragged her to the kitchen cupboard and made her sit. The Appellant left the house at about 4.30pm. The complainant said she was with her neighbours and that she told her 11 year old brother about the incident when he came home from school. She then told her mother when she came home at 9pm. She said that the Appellant’s parents attempted to reconcile, but the matter was reported to the police the next day.

The complainant’s mother gave evidence confirming that when she came home she saw her daughter sitting on the tiles weeping, and in a distressed condition. She said her daughter told her of the assault and the rape, and that after talking to her husband, who came home at midnight, they reported the matter to the police.

Dr Bethel Masau Sunia, gave evidence that he examined the complainant on the 2^nd of February 2001 and that he found three fresh tears to her hymen. He said that this meant that the complainant had had sexual intercourse for the first time within 24 hours before the examination. Under cross-examination he agreed that the injuries to the hymen and the bruising he found at the perineum and vulva, were consistent with the complainant having had consensual sexual intercourse for the first time, and did not necessarily point to a rape.

The prosecution also tendered the Appellant’s caution interview to the police, in which he admitted sexual intercourse but said that the complainant had consented to it.

Counsel for the Appellant made a submission of no case to answer which was rejected by the learned Magistrate. The Appellant then appealed a number of the orders made during the trial to the High Court. I heard that interlocutory appeal and dismissed it, ordering the continuation of the trial.

The Appellant gave evidence, saying that he had consensual sexual intercourse with the complainant on three occasions, the incident on the 1^st of February 2001, being the third occasion. He gave no reason for the allegation of rape, but said that he loved the complainant and wanted to marry her. He said that he had had sexual intercourse with her after the incident, when he was released on bail. He said that her father had refused to consent to their marriage.

The Appellant called PC1347 Deo who said that a girl had gone missing, and that he had found her at Suva Market. He did not identify the girl. Also called for the defence was Intaz Ali who said that on the 1^st of February 2001 he saw the Appellant and the complainant talking outside the house and saw them enter the house together. He said the girl had called the boy. Under cross-examination he said he usually drank grog with the Appellant’s father and that he did not see the two enter the house.

DW3 was Roshni Lata who was a workmate of the complainant’s, who said that the complainant had left work at 8.30am saying she was not in the mood to work. She said when she returned home at 5pm, she saw the Appellant and the complainant talking to each other. She said they were giggling and talking but she could not say what they were talking about.

Daya Wati Prasad is the Appellant’s mother. She gave evidence that she was at home at 1pm on the 1^st of February and that she saw the complainant “marching outside her flat” while the Appellant was sitting on the porch. She did not see where her son went.

DW6, Michael Yusuf Kundan, said that at 1pm on that day he saw the Appellant and the complainant talking outside the house door at about 1pm.

DW7 Anil Kumar gave evidence that he worked with the complainant at United Pacific, and that she did not attend work on the 1^st of February. He later saw her in the afternoon and asked her why she did not go to work. He said her mother was surprised and that the complainant did not say what was wrong.

The Defence then closed its case. Counsel made written submissions and judgment was delivered on 16^th January 2001. The learned Magistrate said, at page 152 of the Court Record that:

“Having considered all that I have raised above, and after observing both the demeanours of the accused and the complainant very closely in court, I am satisfied and convinced that the complainant is telling the truth that she was forced by the accused to have sexual intercourse against her will and I am therefore convinced of the accused’s guilt, by the complainant’s evidence.”

The grounds of appeal
The first ground of appeal is that the Learned Magistrate erred in convicting the Appellant without corroboration.

This ground of appeals appears to be based on an erroneous view of the law of corroboration in sexual cases. In all cases of a sexual nature, a corroboration warning must be given. Such a warning must be either administered to the assessors in the High Court, or by a Magistrate to himself/herself in the Magistrates Court. The warning must consist of the need to look for corroboration, and a definition of what constitutes corroboration. In R -v- Stewart (1986) 83 Cr. App. R. 327, the court held that while the words “danger” and “dangerous” do not have to be used, there must be clear and simple language that will tell the jury that it was dangerous to convict in the absence of corroboration. Having administered the caution, and having satisfied himself/herself that the witness is a reliable one (i.e. capable of belief) a Magistrate may then convict on the uncorroborated evidence of the witness provided he/she is satisfied beyond reasonable doubt, that the witness was telling the truth.

The learned Magistrate directed herself thus in relation to corroboration (at page 149 of the record):

“I am required by law to warn myself of the need for corroboration in the complainant’s evidence. Corroboration is evidence that confirms or supports or strengthens the complainant’s evidence that comes from a source independent of the complainant and that it confirms, or tends to confirm, in some material particular, that both the crime alleged was committed and that the accused committed it. (See R -v- Baskerville (1916) 2 KB 658 at 667.) The evidence relied on as corroboration that the crime was committed may of course, be quite different from the evidence relied on to corroborate that the accused committed it. I must also warn myself that there is no need for there to be independent evidence of everything the complainant says. In the absence of corroboration I may still convict if I am wholly satisfied and convinced of the accused’s guilt by the complainant’s evidence.”

She then went on to say, that because the defence was that there had been consensual sexual intercourse, corroboration was required for the complainant’s evidence of lack of consent. She then rejected the evidence of distress/recent complaint as being corroborative, rejected the medical report on the ground that it was also consistent with consensual sexual intercourse with a virgin, and then found that without any corroboration at all, she found that the complainant was telling the truth. In coming to this conclusion, she found that the evidence of recent complaint was consistent with the evidence of the complainant.

I find no fault in the Learned Magistrate’s approach. Counsel for the Appellant submitted that in the absence of corroboration, the conviction was unsafe. However, there are many authorities which say, that provided a corroboration warning is given, the court may proceed to convict in the absence of corroboration. Although in State -v- Ropate Rabulewa Criminal Appeal No. HAA0083 of 1998 convictions on four counts of indecent assault were quashed in the absence of corroboration, Sadal J made it clear that he made the decision on the basis that the Magistrate had misdirected herself on the question of corroboration. In Latchman Prasad Sharma -v- The State Criminal Appeal No. 0027 of 1997, Pain J dismissed an appeal against conviction on a charge of attempted rape because although there was no corroboration, the Magistrate had correctly addressed himself as to the need for corroboration. In comparison, no such warning was given in Kaliova Rage -v- The State Criminal Appeal No. 0058 of 1996 and the conviction was quashed, Fatiaki J saying (at page 6): “......... it was therefore vital that the trial magistrate should have warned himself about the necessity to look for corroboration of the complainant’s evidence as to the absence of any consent on her part to the sexual intercourse that occurred .........”

Counsel submitted that the form of the warning given was inadequate because the Magistrate did not detail the dangers inherent in the evidence of a rape complainant. However, as the English Court of Appeal said in R -v- Trigg (1963) 47 Cr. App. R. 94, the whole purpose of the rule is to ensure that the court treats the evidence with caution. There may be many reasons why a witness’s evidence might be considered to be unreliable, and it is not necessary to inform the jury of each source of unreliability. As was held in R -v- Henry and Manning (1969) 53 Cr. App. R. 158 there is no one formula for a corroboration warning, no “magic formula or mumbo-jumbo required in a direction relating to corroboration.” In R -v- O’Reilly (1967) 51 Cr. App. R, a trial judge did not use the word “corroboration” in his warning to the jury but it was held (per Salmon LJ) that a proper warning had been given.

The law is that a judge or magistrate must, in clear and simple language tell the jury that there is a danger in convicting on the complainant’s evidence alone, and if bearing the warning in mind, the conclusion is reached that the complainant is without any doubt, speaking the truth, then the fact that there is no corroboration does not matter, and the accused may be convicted without corroboration.

I find that the corroboration warning in this case is wholly adequate, and that it was open to the Magistrate to convict in the absence of corroboration.

The second ground of appeal is that the evidence of the complainant’s evidence was so discredited under cross-examination, that the magistrate should not have accepted it. Counsel referred me to a number of examples of such alleged inconsistencies. One such example was her evidence that when she first saw the Appellant he was sitting, and her evidence in cross-examination that he was standing. Another example is that she said that the Appellant had left the kitchen knife in the kitchen after entering the house, but used it again when her brother knocked at the door. On a reading of the court record, these inconsistencies do not appear to be particularly significant. In particular, the complainant’s evidence was that the kitchen sink was only 3 metres away from the bedroom, and that the table where the Appellant had left the knife, was immediately beside the bedroom. There is therefore nothing inconsistent about the Appellant using the knife again when they were both in the bedroom, particularly when the evidence was that when her brother knocked, the complainant was dragged to the kitchen cupboard and made to sit there.

None of the alleged inconsistencies appear to have affected the complainant’s evidence that she was raped by the Appellant. Further her evidence was supported by other pieces of evidence which the Magistrate did not refer to specifically, such as the torn pillow case, and the evidence of her distress. Finally, there was no real explanation for why the complainant would lie about the rape. Indeed, if as the Appellant said, the two were involved in a sexual clandestine relationship, one would expect the complainant not to tell anyone about the incident.

In the circumstances I find that the Magistrate was entitled to accept the evidence of the complainant particularly because she was able to observe her demeanour during many hours of cross-examination. This ground is unsuccessful.

The last ground of appeal is that the learned Magistrate failed to adequately explain why she preferred the evidence of the complainant.

In her 10 page judgment, the Magistrate carefully directed herself on the elements of the offence of rape, the law relevant to corroboration, the evidence led, and the matters which were not in dispute. She said that she placed no weight on the medical evidence (although the doctor’s evidence that the complainant had been a virgin before the incident was capable of lending weight to the complainant’s evidence) and analysed the defence case over two pages. She referred to the evidence of recent complaint, saying that the “complainant’s recent complaint at the earliest opportunity to her mother is consistent with the conduct of the complainant with her evidence, tending to negative consent.”

It is perfectly clear, on a reading of her judgment, why she believed the complainant, and disbelieved the Appellant. Not only was her finding based on the complainant’s evidence as supported by evidence of recent complaint and distress, but she had evidently decided, on the basis of the demeanour of both Appellant and complainant, that she believed the complainant. I cannot therefore agree that her judgment lacked analysis or reasons.

For these reasons, this ground is also unsuccessful.

In the course of argument, counsel argued that the evidence of recent complaint, made some five hours after the incident, to the mother, should not have been admitted.

The law of evidence, provides for the admissibility of recent complaint in sexual cases, as an exception to the rule against the admissibility of previous consistent statements. To be admissible, the complaint must be made on the first opportunity which reasonably offers itself after the offence. Whether the complaint was indeed a “recent” complaint, is a matter for the presiding judge or magistrate to decide, and it was held in R -v- Kiddle (1898) 19 Cox 77, that the complaint need not be on the earliest opportunity. In R -v- Wilbourne (1917) 12 Cr. App. R. 280, it was held that the fact that the complaint might have been made to others before it was made to the witness does not render it inadmissible. Indeed, in considering the admissibility of recent complaint the court must consider the age of the complainant, and the person to whom the complaint was made. In this case, the fact that the complainant told her mother when she came home at 9pm, appears to have been accepted by the Magistrate as being a complaint made on the first opportunity that reasonably offered itself to this complainant. She was entitled to accept this evidence, particularly considering the age of the complainant and her cultural background.

Conclusion

The grounds of appeal are unsuccessful. The appeal against conviction fails. The Appellant does not pursue an appeal against sentence.

Nazhat Shameem
JUDGE

At Suva
22^nd March 2002