Qio v The State [2005] FJHC 71; HAA0011J.2005S (1 April 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0011 of 2005S

Between:

WAISEA QIO
Appellant

And:

THE STATE
Respondent

Hearing: 23rd March 2005
Judgment: 1st April 2005

Counsel: Ms S. Salele for Appellant
Mr. W. Kuruisaqila for State

JUDGMENT

This file was transferred to the Suva High Court by the learned criminal Judge in Lautoka, on the ground that the Appellant is currently housed at the Suva Prison. It is an appeal from the Keiyasi Magistrates’ Court.

The Appellant was charged as follows:

Statement of Offence

UNNATURAL OFFENCE: Contrary to Section 175(a) of Penal Code, Cap. 17.

Particulars of Offence

WAISEA QIO on the 31st day of January, 2004 at Bukuya, Ba in the Western Division, had carnal knowledge of Semesa Korocawiri against the order of nature.

He was found guilty after a trial, and sentenced on the 28th of May 2004 to 7 years imprisonment. He appeals in person against the conviction and sentence, saying that he had pleaded guilty, that other boys had been involved in the offence but that only he had been charged, and that the sentence was harsh and excessive. His letter of appeal betrayed his ignorance of the law. He was later represented by counsel, who filed amended grounds of appeal. They are as follows:

Against Conviction:

1. That the learned Magistrate erred in law and fact in proceeding to hold a trial when requirement for disclosure of statements of witnesses to the accused had not been complied with.
   
2. That the learned Magistrate erred in law and fact in failing to grant an adjournment upon an application by the accused to enable attendance of the trial by his witness.
   
3. That the learned Magistrate erred in law in not complying with procedural requirement as outlined in section 211 of the Criminal Procedure Code.
   
4. That the learned Magistrate erred in law and fact in concluding that the requirement of corroboration had been satisfied beyond reasonable doubt upon the evidence adduced by prosecution.
   
5. That the learned Magistrate erred in law and fact in failing to comply with the procedural requirement in section 215 of the Criminal Procedure Code.
   
6. That the learned Magistrate erred in law and fact in convicting the accused even though it was not safe and satisfactory to do so in light of all the available evidence before him.
   
7. That the learned Magistrate erred in law and fact in giving too much weight to the medical report as reliable evidence since the contents do not conclusively suggest that the injury observed would possibly have been caused by the offence alleged.
   
8. That the learned Magistrate had failed to give recognition to and uphold fundamental rights of the accused as contained in the Bill of Rights and enshrined in the Constitution of the Republic of Fiji, the individual relevant clauses to be referred to during submission.
   
9. That the learned Magistrate failed to uphold principles of justice and fairness in:
   
   • (i) Failing to raise the issue of representation for the accused in light of the seriousness of the offence that the accused was being tried with, or at least enquire as to whether the accused was aware of the availability of Legal Aid.
     
   • (ii) Not allowing the accused the opportunity to proceed with his cross-examination of prosecution witnesses.
     
   • (iii) Declining an application by the accused for the opportunity to allow attendance of the trial by his witness who was sick.
     
   • (iv) Failing to ensure that a complete set of disclosures particularly witnesses’ statements had been provided to the accused and an affidavit sworn to that effect.
     

Against Sentence

10. That the sentence imposed by the learned Magistrate was manifestly harsh, oppressive in the circumstances and wrong in principle.
    
11. That the learned Magistrate failed to give due weight to the following mitigating factors:
    
    • (a) That the accused had a generally clean record and was not a hardened criminal. That despite having a previous conviction, it was for an unrelated offence and a misdemeanour for which he was fined.
      
    • (b) That the accused be given some credit for doing something good in life in sacrificing his days of youth in supporting his elderly grandparents who have no one else to look after them.
      
    • (c) That there are no aggravating factors present.
      
    • (d) That injury sustained was minor (“superficial”) that the complainant did not need immediate medical attention. The complainant was playing with the other children on the village playground by the afternoon of the day the offence allegedly took place.
      
    • (e) That the accused was very co-operative with Police investigation by taking Police and showing them the exact area where he had found the complainant and the other children playing when he was sent to search for them.
      
    • (f) Not being represented, the learned Magistrate should have queried into the accused person’s background before ruling on sentence.
      
12. That the learned Magistrate erred in law and in fact in punishing the accused for not pleading guilty and for failing to express remorse by adding 2 years to the 5 years he had initially meted out.
    

Disclosure, Representation and Prejudice

The case was first called on the 19th of February 2004. The Appellant was in custody. He asked for bail and denied the charge. He was further remanded because there was tension in the village and the learned Magistrate ordered that disclosure be served forthwith. On the 4th of March 2004, the prosecution said that all disclosure had been served, and did not object to bail. The Appellant was granted bail.

The trial proceeded on the 28th of May 2004. The first witness was Semesa Tuilawaki Korocawiri, a 14 year old child. He gave evidence that on the 31st of January 2004 he had breakfast at 7am and went to collect firewood from the bush. He met the Appellant in the bush. There were other children in the bush, and he told them to go home. While collecting firewood, the Appellant held his hand and hit the other children with a stick, telling them to go home. He then pulled the witness down a hill, tied one of his hands to a tree, took off his pants and inserted his penis into the boy’s anus. The witness said he was in pain. The Appellant then untied him. He went home and told his mother what had happened.

The Appellant in cross-examination appears to have asked only two questions. One was that he did not tie the witness’ hand, and the other was that there were other people around. The learned Magistrate told him to ask more questions but he did not.

PW2 was Mereani Korocawiri, PW1’s mother. She said that she had sent her son to collect firewood at 8am. He returned after 12 noon, and when she asked him why he was late, he told her what the Appellant had done. She took her son to the Appellant’s house. The Appellant’s grandparents (who were also her grandparents) were there. She told them what their grandson had done but they did not respond. She then reported the matter to the police.

There was no real cross-examination of this witness, despite the learned Magistrate’s prompting of the Appellant. The next witness, a police officer tendered the Appellant’s caution interview. He had denied all the allegation. A medical report was then tendered, which showed that the victim had received a cut or tear at the entrance of his anus. The Appellant then gave unsworn evidence saying:

“I called them on that day. I wanted to call the Turaga ni Koro.”

He later said:

“I did not commit the offence. I chased the children. It was nearly 12 noon – time for lunch. I called them and chased them away. Semesa took them to where the mango trees. I then hit them. Then I went home, I was told that complainant and mother were at home to complain. My grandfather wanted Turaga-ni-Koro to call a meeting but the mother and complainant refused. They wanted to report.”

The Appellant then wanted to call a witness who was present at the time and saw the Appellant chasing the children away. He was sick. The prosecution objected to any adjournment, saying that the Appellant had been warned to bring his witness on that day. The Appellant denied this. The Court denied the adjournment, saying that the Appellant had not challenged the prosecution evidence anyway.

The learned Magistrate then delivered judgment saying that the medical report corroborated the evidence of the victim, and that there was also evidence of distress and recent complaint. He found the Appellant guilty as charged and sentenced him to 7 years imprisonment.

The Appellant was, at all times, unrepresented by counsel. At the time of trial, he was a 19 year old with only one previous conviction for drunk and disorderly. He was not educated beyond primary school and earned his keep as a farmer.

The court record shows that he was never told of his right to counsel. From the way that he conducted his defence in court, it was apparent that he was prejudiced by lack of representation. There is nothing on the court record, or file to indicate that he was served with witness statements prior to trial. Although the prosecutor said that “disclosure had been served”, there is no disclosure certificate on the file, and the learned Magistrate did not seek confirmation from the Appellant. In particular, it is not clear whether he saw the medical report of the victim. He certainly did not consent to the tendering of the report under section 191 of the Criminal Procedure Code. He was not asked if he objected.

He asked very few questions in cross-examination. To his credit, the learned Magistrate reminded him to ask questions, but he did not suggest to PW1 that there was no carnal knowledge, whilst he was giving evidence. Indeed, his defence only became apparent in his unsworn evidence. Tedious though it might be, judges and magistrates have a duty when confronted by unrepresented accused persons, to ensure that their cross-examination properly reflects all matters in dispute. This duty exists to ensure that the accused is not prejudiced by lack of representation.

Once the Appellant gave his unsworn statement, his defence became clear. It was that he had assaulted the victim, that he had chased him and the other children home because it was lunchtime, and that there was no sexual assault. None of this had been put to PW1, as it ought to have been, and the one witness who might have given evidence of the chasing and the assaulting, was denied to the Appellant. Further if he had been represented, the doctor might have been called, and would have been cross-examined on the possible causes of the tear to the anus. There can be no stronger case for prejudice caused by lack of representation.

In the circumstances, I have no option but to set aside conviction and sentence. It is unnecessary to deal with corroboration, other than to say that the rule of practice, which applied to sexual cases, has now been abolished but that the rule continues to exist in relation to the sworn evidence of children. In this case, the rule continues to apply and the presiding magistrate must warn himself or herself.

This appeal is allowed. Conviction is set aside. A re-trial is ordered. The Appellant may apply for bail before the Magistrates’ Court.

Nazhat Shameem
JUDGE

At Suva
1st April 2005