Natakuru v The State [2004] FJHC 100; HAA0017.2004 (11 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0017 OF 2004

BETWEEN:

JOSUA NATAKURU
Appellant

AND:

STATE
Respondent

Counsel: Appellant – In Person
Mr. D. Prasad – for the State

Date of Hearing: 5th May, 2004
Date of Judgment: 11th May, 2004

JUDGMENT

Introduction

On the 18th of March, 2001 the appellant was convicted on one charge of rape. He was granted leave to appeal against that conviction on the 27th of February, 2004. The file was prepared and submitted on the 8th of April, 2004. A hearing date was scheduled and proceeded on the 5th of May, 2004.

Particulars of the Offence and Trial:

There was no doubt that sexual intercourse took place. The issue in this trial was always going to be whether or not it was consensual.

The evidence disclosed that the appellant who was vaguely known to the complainant met up with her at about 2 o’clock in the morning outside her home. They had a discussion the result of which was that she agreed to go with the appellant to his home at USP.

They walked through Flagstaff and down to the USP compound. At his invitation they entered a vacant home, went to a bedroom and had sexual intercourse twice. Thereafter the complainant took her leave at about 6.00am and walked home arriving at about 6.30am in the morning.

Thus far I have summarized the case in a neutral way. The point of difference between the appellant and the complainant was that she says the sexual intercourse was non-consensual and took place after protest by her. He claims that everything that happened was entirely consensual.

In support of the Prosecution the police:

1. Introduced into evidence a part exculpatory and part inculpatory statement from the appellant.

2. Produced a medical report through an investigating officer without calling the author of the report.

3. Claimed that a complaint made by the victim some 14 hours after the event was recent and corroborative of her allegation.

In answer to the introduction of this evidence the appellant:

-Attempted to challenge the voluntariness and fairness of the statements.

-Claims he demanded that the author of the medical report be present in Court for cross examination.

-Remained ignorant about the law or importance of recent evidence.

Grounds of Appeal

In a written petition of appeal the appellant essentially specifies these grounds:

1. That the confession was procured under duress and was inadmissible.

2. That the learned magistrate should have directed herself in respect of the issue of the admissibility of the confession.

3. Criticism of the medical report and on the magistrate’s failure to properly weigh that evidence.

4. Criticism of the magistrate for admitting recent complaint evidence.

5. Criticism of some evidential inferences drawn by the magistrate as they were not supported by testimony.

The Appeal

The appellant was unrepresented. He chose to have the proceedings conducted entirely in English. He appeared comfortable and articulate in the English language.

He assured the Court that he had applied for Legal Aid but was refused. He acknowledged he was entitled to representation by counsel but had elected to represent himself. He had prepared and filed with the Court on the morning of the appeal extensive thoughtful and helpful submissions. He had prepared a copy of these for the State.

I reviewed these submissions. The appellant then emphasized his 3 strongest points:

1. Medical Evidence

The appellant submitted and I am prepared to accept that he asked for the medical officer to be brought to Court. He claims he made that application during the trial. He concedes that the application does not appear in the record. His recollection is however that the application was refused by the learned magistrate as it was said that some notice should have been given of his requirement to cross examine such a witness. The appellant claimed that he wanted to cross examine the examining doctor as he felt the disclosed findings were ambivalent.

(2) Confession

The appellant reminded me that throughout the trial he had challenged the confessional statements he made to the police. He wanted the admissibility of these confessions determined during his trial. He referred me in particular to that portion of the transcript where he challenged signatures on the confessional document.

He submitted that neither the admissibility nor the comparative analysis of the signatures was ever disposed off during his trial.

(3) Recent Complaint

The appellant submits that at his trial he knew nothing about the principles governing the admissibility of recent complaint evidence. He has since read about those principles. He submits that this was not a case where the victim recently complained about rape. He submits that evidence should have been excluded.

(4) Unrepresented Accused

The appellant emphasized he was unrepresented. Although he has a large list of previous convictions he submitted and I accept that in the past he always co-operated with the police in their investigations. Made voluntary statements and pleaded guilty at the earliest opportunity. As such he came to this trial as a layman unskilled in the ways of the Court. He submits he was given no information to enable him to make informed choices on issues such as:

- the production of the medical officer in Court

- the admissibility of his confessional statement

- the admissibility of recent complaint evidence and its impact on the hearing.

(5) The State

Mr. Prasad presented some written submissions. In the course of addressing the Court about those submissions he made 3 appropriate concessions:

1. Confession

The State conceded that it is clear the appellant wanted to challenge the admissibility of his confessional evidence. The State could not point to any passage in the record or decision that dealt with that challenge. The State could not point to any passage in the record where the magistrate had provided information to the appellant to enable him to make and informed decision about the issue of admissibility of the confession.

2. Medical Report

The State conceded that there was nothing in the record to indicate information was given to the accused concerning the admissibility of the medical report.

3. Recent Complaint

The State conceded that no where in the record was information given to the appellant concerning the admissibility of the recent complaint evidence or its importance. Mr. Prasad went further and conceded that on review of the trial transcript it was clear that the complaint was first made by the victim to her boyfriend at approximately 8.00pm on the day of the alleged rape. That prior to this complaint the victim had opportunities to complain to a man she encountered on her walk home from the USP compound at around 0630 her sister early that morning her boyfriend who called round to the address at 2.00pm that day.

At the very least the State concedes that these issues concerning recent complaint should have been resolved in the learned magistrate’s decision but were not.

The counsel did his best to argue that in spite of these defects in the trial the conviction was safe as there was other evidence that supported the proposition that the acts of sexual intercourse were not consensual. However, he conceded that on the face of the record the learned magistrate had failed to address the three most important evidential aspects of the case. In these circumstances he appropriately agreed that the conviction was unsafe.

Decision

Trials with the unrepresented can present difficulties. The frequency of unrepresented accused appearing in Courts in Fiji should however make judicial officers acutely aware of the obligations resting on a trial judge in those circumstances.

The role of a trial judge in proceedings where parties are unrepresented has been the subject of much consideration particularly when the unrepresented party is the defendant in criminal proceedings (see MacPherson v R [1981] HCA 46; (1981) 147 CLR 512; R v Zorad (1990) 19 NSWLR 91; R v Gidley [1984] 3 NSWLR 168; R v Lawson, unreported, NSW Court of Criminal Appeal, 28 May 1990; R v Cobley, unreported, N.S.W. Court of Criminal Appeal, 17 July 1992).

In MacPherson confession evidence was lead against an unrepresented accused where there were real issues as to the voluntary nature of that confession. The High Court ruled that the trial judge should have held a voir dire to determine whether the confession was voluntary even though no voir dire was requested.

The court was of the view that there was enough prejudicial evidence to require that inquiry. The judge’s duty to an unrepresented party arises from an overall responsibility to ensure that proceedings are fair. However, the obligation on a trial judge to ensure that every accused has a fair trial is simply to provide the unrepresented with such information and advise concerning their rights as is necessary to put them in a position where they can make an effective choice about whether they should exercise their rights or not. In my view that obligation does not arise in respect of confessional statements unless there is some evidential basis to make that a real issue in the trial.

Having reviewed the record it is clear to me that the appellant was adamant in his challenge to the admissibility of the confessional evidence. He went so far as to ask that the Court compare the validity of his signature on various confessional documents. This caused the learned magistrate to pause and indicate that that issue would be dealt with at the end of evidence. The issue was never raised again.

The admissibility of that confessional evidence was a predominant feature in the prosecution and defence case. The failure by the learned magistrate to address that issue during the course of the trial would alone lead me to the view that the conviction was unsafe. However, compounding that issue was the learned magistrate’s complete failure to provide the appellant with any information that would enable him to make an informal choice about the issue of the admissibility of the confessional statement.

The situation does not end there. The admissibility of the medical report in the absence of the medical officer was in clear breach of the accused’s rights. There is nothing in the record to indicate that any information was given to the accused regarding the admissibility of that report. It was introduced in a most casual way by an investigating officer. It was an unchallenged document. It was unchallenged because the accused was ignorant about his rights to have the medical officer called so that he could explain the contents of the report. This issue renders the conviction unsafe.

There is nothing in the record to indicate that the learned magistrate provided the unrepresented appellant with any information concerning the impact of recent complaint or its importance in a trial for rape. At the very least the learned magistrate should have been vigilant to ensure that the complaint evidence qualified for admission. There is nothing in the trial record or the judgment to indicate that such an analysis was undertaken.

That is a particularly important omission as in my view the validity of the recent complaint evidence is marginal. The learned magistrate would at the very least have had to properly consider all of the evidence concerning the recent complaint. It is clear in her decision that the learned magistrate fell into factual error over exactly what was the recent complaint.

Emphasis is made on page 5 that the victim complained to her boyfriend the next day Sunday the 8th of February when he went to see her at her home. This is incorrect. The analysis at page 8 under the sub-heading recent complaint that the victim complained at the earliest opportunity to her sister and her boyfriend is not supported by the evidence. On this ground I would find the conviction unsafe.

In my view any one of the four heads of complaint under discussion in this appeal would in and of itself be sufficient to enable the conviction to be overturned. Regrettably when combined together they must inevitably lead to that decision.

The appellant has now served some 2 years in custody. A further issue for me is whether the conviction should be overturned without the need for the matter to be referred back to trial. The State submits that a re-trial is appropriate. The appellant was informed of the choices and options open to the court and conceded merit in the State’s submission. After careful consideration I have decided that this is an appropriate case where the matter should be returned to the magistrate’s court for re-trial before a different magistrate. Accordingly the appeal is granted. The conviction is quashed. I order a re-trial before a different magistrate. In the meantime until that trial the appellant is admitted to bail on the following conditions:

(1) To secure his own attendance at the High Court by standing in his own recognizance in the sum of $1,000.00.

(2) To attend court when told to do so for mention, any pre-trial applications, and the trial of his case, and to attend next on 25/5/04 at 9.00am at the Magistrates Court, Suva.

(3) To be of good behaviour and not to commit any offence whilst on bail.

(4) To reside with Mrs. Sereima Lumelume at Married Quarters 47, USP Compound until the conclusion of his trial and curfew at 10.00pm – 6.00am.

(5) And not to change that address without the written leave of the Police which leave must be obtained before any change of address is made. If he is aggrieved by any refusal to permit a change of address, application can be made to a judge of the High Court on 1 day’s notice.

(6) Is not to approach any prosecution witnesses, directly or indirectly, or to interfere with, or harass them, in any way.

(7) Is to report to the Flagstaff Police Station, twice a week on every Mondays and Fridays between 6.00am and 6.00pm.

(8) And is warned that breach of any of these conditions is likely to result in the cancellation of his bail and the issuance, if necessary, of a warrant for his arrest and a return to custody till he is tried.

(9) Is to sign this Bail form in acknowledgement of having understood these terms and conditions and in acknowledgement of agreeing to be bound by them during the period of bail.

Gerard Winter
JUDGE

At Suva
21st May, 2004