Agnu v State [2008] FJHC 201; HAA067.2008 (5 September 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 067 OF 2008

BETWEEN:

ROBYN AGNU
Appellant

AND:

THE STATE
Respondent

Hearing: 28th August 2008
Judgment: 5th September 2008

Counsel: Mr. M. Raza for Appellant
Ms L. Lagilevu for State

JUDGMENT

The Appellant was convicted on one count of indecent practice between males, contrary to section 177 of the Penal Code, and sentenced to 12 months imprisonment on the 3rd of April 2008. Because of the delay in the submitting of the court record, he was granted bail pending appeal on the 16th of May 2008, after he had served two months of his term of imprisonment. The court record was finally sent to the High Court on 8th July 2008. It was received on the 16th of July 2008 four months after the filing of the petition of appeal. The 28 day time limit for the sending of court records to the High Court for appeals to be heard, is a "due process" rule, intended to prevent delay or the frustration of an appeal. It is hoped that in future, such a delay becomes exceptional.

The Appellant was charged with committing an act of gross indecency with another male person, namely Takuia Iaoiea in a private place. At the time of the alleged offence the alleged victim was 9 years old.

The trial commenced in the Suva Magistrates’ Court on the 17th of January 2008.

The complainant was born on 22nd September 1995. In 2005 he was in Class 2. On the 28th of April 2005, he was at home watching TV. The Appellant, who was their landlord, came and asked him to help him clean the flat next door. He went with him. He had known the Appellant for three years since his family had first come to reside in his house.

The complainant went to the flat next door. The Appellant asked him to remove the bulb from the light in the ceiling. The complainant could not reach it, and the Appellant lifted him onto his shoulder, and touched his penis. The complainant told him to stop and he said he was just playing and put him down. He then told the complainant to start sweeping. He then pulled him to the corner of the room, kissed him, touched his penis, unbuttoned his trousers and sucked his penis. The complainant was scared and pushed him away but after a while he came back and started doing the same thing again. The second time, the Appellant sucked his penis for a long time. His mother came to the door and tried to open it. She came in and asked the complainant if he was all right and he told her he was. She left, then the Appellant again kissed him, and sucked his penis. After that his brother Antonio came and helped in the cleaning. Later in the day the complainant told Antonio what had happened. He told his sister the following Tuesday.

Under cross-examination the complainant said he had not called for help while this was happening, that he could not run away because the Appellant had locked the door, that in his police statement he had said that he had complained to Antonio on the Saturday after the event, but that he had told him the same day, that in fact he had told Antonio twice about the incident, that he didn’t think of telling his mother what had happened when she came to the flat, and that he continued to sweep even after the assault because he felt like sweeping. He said he was too scared to tell his mother what had happened. He was cross-examined on what he had told the doctor, a Doctor Kim, but the report was not tendered according to the court record. State counsel said it was not tendered because she still has the original. Counsel for the Appellant disputes this, but the record itself states that it was not tendered. I am bound by the record. However it appears that the complainant told the doctor that he had run to his mother to complain about the incident. In his evidence in court, he said he did not tell his mother until the day he told his sister about the incident.

The evidence of Antonio Iaoniba, the 16 year old brother of the complainant was that on the 28th of April 2005, he was watching television with his sisters and brother. The complainant was in the flat next door, helping the Appellant with the cleaning for about an hour. When he saw the complainant at about 5pm, the complainant told him he did not want to help Robin because he had come from behind, touched his penis and had kissed it. Antonio was angry and told the complainant to tell their sister Zina. In cross-examination he said he had not told his mother about it because "I know what its like. It happened to me once."

Under cross-examination, he agreed that he had told the police that his brother had told him about the incident on the following Saturday, and that when the Appellant came again to look for the complainant he ran away and hid himself in the toilet until he was sure that the Appellant had gone away.

The third witness was Tinea Iaoniba, the 13 year old sister of the complainant. She said she came to know about the incident on the 3rd of May 2005, the following Tuesday when the complainant told her he did not want to go to the Appellant because "Robin had done something bad to him." He then told her what the Appellant had done to him, and she told their mother. Their mother was angry and said she would report the matter to the police. She was also cross-examined on her previous statement. She said that until the complainant told her about the incident, no one else had told her about it.

PW4 was Karina Iaoniba, the complainant’s 18 year old sister. At the time of the incident, she was 15 years old. She was told about the incident by her mother in the presence of the complainant, and by her sister earlier.

The interview record of the Appellant, which was exculpatory, was tendered by consent. The defence called no evidence and judgment was delivered on the 6th of March 2008. The Appellant was convicted on the basis that the learned Magistrate accepted the evidence of the complainant, and accepted the evidence of recent complaint. She directed herself as to the need to look for corroboration and said in relation to credibility:

"Some discrepancies in the evidence came out during cross-examination. However those discrepancies were minor and to be expected in a 2005 case, heard in court in 2008. People do not always remember the exact sequence of events after about 2½ years. At that time Takuia Iaoniea was only 9 years old. At the hearing he came out as a truthful witness."

She then referred to the cross-examination of the complainant and said (at page 5 of the judgment):

"In cross-examination he had admitted that he didn’t yell out or run to his mother when she came to the flat and admitted that he did lie and said that he was alright when his mother enquired. He said he was scared. 9 years old Takuia Iaoniea didn’t like what was happening to him but was too scared to say anything even to his mother. From the evidence adduced he had to be persuaded to tell the mother. He probably wouldn’t have told his sisters or mother if Robin Agnu didn’t come looking for him."

She then commented:

"There is no behavior that a victim of sexual violence should follow. Some do yell, scream but there are others who are too stunned, shocked, embarrassed, shamed to say anything or do anything. It appears that Takuia Iaoniea would have liked to shut out this incident. I also note that in sexual offences there are hardly ever any eye witnesses or any witnesses at all to provide corroborative evidence. I accept complainant’s evidence. I find there’s no need for corroborative evidence."

She found the Appellant guilty as charged. After hearing mitigation, she found that the Appellant was 41 years old and the complainant a 9 year old boy. She referred to Ratu Penioni Rakota v. State HAA 0068 of 2002 and decided that the principles relevant to the indecent assault of children applied to a case under section 177 of the Penal Code. She sentenced the Appellant to 12 months imprisonment.

The appeal

The grounds of appeal are as follows:

1. That the learned trial Magistrate erred in law and in fact in convicting the Appellant by failing to evaluate the evidence adduced by the prosecution and the defence adequately and/or at all for the following reasons:

a) that the learned trial magistrate failed to evaluate the material inconsistency of PW1’s evidence.

b) that despite the admission by PW1 that he deliberately lied yet the learned trial magistrate found him to be a truthful witness and accepted PW1’s evidence.

2. That the learned trial Magistrate erred in law and in fact by stating "I also accept the evidence of the other prosecution witnesses. I find them to be credible witnesses." Whereas, PW3 and PW4 gave hearsay, i.e. of being informed of the incident on 3rd day of May 2005.

3. That the learned trial Magistrate erred in law and in fact in failing to consider that corroboration was required in view of the learned trial magistrate’s finding that there were discrepancies in the evidence given by the witnesses.

4. That the learned trial Magistrate erred in law and in fact in accepting that there was evidence of recent complaint despite the fact that PW2 admitted in cross-examination that in his 2nd statement to the Police, PW1 told him on the 30th April 2005, i.e. 2 days after the incident.

5. That the learned trial Magistrate erred in law and in fact in adopting the wrong test in accepting the evidence of PW1 by stating that "he answered the question confidentially and stood his ground under intense cross-examination." Whereas PW1 was thoroughly discredited under cross-examination.

6. That the learned trial Magistrate was biased in her approach in analyzing the evidence so as to convict the Appellant.

7. That the learned trial Magistrate acted on conjectures in convicting the Appellant.

Credibility and Inconsistency

Grounds 1, 2, 3 and 5 can be dealt with together. Counsel submitted that there were so many inconsistencies in the evidence, that the learned Magistrate’s conclusion that she believed the complainant was an error of fact and law. He further submitted that the learned Magistrate failed to properly analyse the discrepancies, citing Chandar Pal v. Reg [1974] FLR 1, on the obligation to give reasons.

State counsel submitted that any discrepancies were non-material, and that any inconsistency in detail was due to the time lapse between the incident and the trial, and the age of the complainant.

It is correct that there was lengthy cross-examination on the details of the incident, by defence counsel, and on his failure to report the matter immediately to his mother. However the witness gave reasons for these matters and the learned Magistrate chose to accept his evidence, finding the inconsistencies to be unsurprising. It is now trite law that an appellate court will rarely interfere with findings of fact made by a court of first instance. There is good reason for this. Appellant courts rarely see the witnesses, and are rarely able to assess demeanour. Credibility depends as much on the demeanour of a witness, as it does on factual consistency.

Although counsel is critical of the lack of analysis of the various discrepancies, I find that the learned Magistrate did explain her decision to accept the evidence of the complainant, in the passage I have set out above in this judgment. She was left with a clear impression of a witness who did not want to confront what had occurred, preferring instead to "shut it out." At page 5 of the judgment she said:

"Takuia Iaoneia appeared to be an intelligent and confident person. He was then sworn in. He answered the question[s] confidently and stood his ground under intense cross-examination."

I find that the learned Magistrate adequately explained her decision to accept the evidence of the complainant. I find further that she did not err when she accepted the evidence of recent complaint of the complainant’s brother and sister. She accepted that the first complaint was to Antonio on the same day as the incident, and that the second was on the Tuesday after the incident (five days after it) when he complained to his sister. What is "recent" for the purpose of a recent complaint depends very much on the age of the victim and the circumstances of the case. Both the complainant and Antonio agreed that the complaint was on the same day as the incident. It was suggested that Antonio had given an inconsistent version to the police about the recent complaint, but Antonio was cross-examined on it at length, and the learned Magistrate chose to accept the evidence of Antonio. His explanation was that he did not tell the police about the complaint of the same day as the incident because he was not asked about that day.

It was also alleged that the complainant had told the doctor an inconsistent account to the account in court. However, State counsel in her submission said that there was no inconsistency about the substance of the complaint. Any inconsistency was about whether he had told his mother immediately after the incident.

Again, the complainant was cross-examined about what he had told the doctor and the learned Magistrate chose to accept his evidence despite any discrepancies. Again, her decision is one difficult to disturb on appeal, based as it is on her assessment of credibility and reliability. I find that she did not err when she accepted the evidence of recent complaint. Certainly a complaint made on the same day, or 4 days later, or even a week later is capable in law of satisfying the test for recent complaint. (R v. Lillyman [1896] UKLawRpKQB 126; [1896] 2 QB 167, R v. Islam [1999] 1 Cr. App. R. 22).

She did err however when she failed to direct herself on the need for corroboration for the evidence of children. The law on the evidence of children is that where a child gives unsworn evidence, corroboration is required as a matter of law. That means that without corroboration, a conviction is impossible. Where however a child gives sworn evidence, a corroboration warning should be given as a matter of practice on the basis that the evidence of children may be unreliable without some supporting evidence independent of the child and implicating the accused. This rule is left untouched by the Court of Appeal decision in Seremaia Balelala v. The State [2004] AAU003.2004S, which dealt with corroboration in sexual cases. In that case, the court found that the law on corroboration as it impacted on women, was based on myths about female behavior, and "a wide range of reasons, including a supposed tendency in women to engage in fantasy, to be fickle or spiteful in sexual relationships, to be prone to sexual neurosis, or to be unwilling to admit to consent out of shame." The Court of Appeal held that these reasons and myths "... reflected a flawed understanding of the world, they have been unfairly demeaning of women, and they have been discredited by law makers in more recent times." At page 11 of the judgment the court held:

"...... it would henceforth be a matter for discretion, in accordance with the general law, for a judge to give a warning or a caution, wherever there was some particular aspect of the evidence giving rise to a question as to its reliability."

In sexual cases therefore the mandatory requirement for a corroboration warning was abolished in Balelala. However the common law rule that the sworn evidence of children requires a corroboration warning irrespective of the charge, was not the subject of the decision. There was a suggestion that a warning or caution might be given where the complainant "was shown by reason of age or mental disability to be questionable as to her veracity" but the court did not deal specifically with the sworn evidence of children. If this case before me, is referred to the Court of Appeal, it may be an opportune occasion to consider whether the sworn evidence of children requires a corroboration warning, and whether it is an inequality before the law to treat the evidence of children as inherently unreliable as the evidence of accomplices.

For the purposes of this judgment, the learned Magistrate did not specifically warn herself of the need for caution when assessing the evidence of the complainant. At common law, she was required to do so. However, it is apparent from her judgment that she considered the issue, saying at page 4 of her judgment:

"The complainant is a child and keeping in mind section 10(1) of the Juvenile Act – the evidence of young witnesses have to be approached with extreme caution and especially so in a sexual offence case. Though it is not always essential to prove corroboration in sexual offence cases, in cases such as this it is implicit to consider if there is a need for corroboration of the complainant’s evidence."

At page 6, she found that there was no need for corroboration because she accepted the complainant’s evidence.

Clearly she considered the "implicit" need for corroboration and although she did not refer to the dangers of convicting in the absence of corroboration, I consider that she approached credibility and reliability with caution, with the need for corroboration in mind.

The Appellant under caution denied the incident, admitting only that the complainant and his sister had come to his flat to help him clean it. In effect there was no corroboration in the strict sense, although the evidence of recent complaint was generally supportive of the complainant’s evidence and consistent with it.

In these circumstances the learned Magistrate’s approach does not justify a quashing of the conviction.

Bias

Ground 6 alleged bias, but this ground was abandoned at the hearing of the appeal.

Speculation

Ground 7 is that the learned Magistrate erred in that she acted on "conjecture" when she convicted the Appellant.

Her reference to the way in which victims of sexual violence behave was unfortunate. How any victim of violence behaves is a matter on which an expert could give evidence. However, the courts should refrain from assuming how any victim might behave faced with an incident of sexual misconduct. The learned Magistrate may have been drawing from her own experiences as a sitting magistrate but it is always better to rely on evidence before drawing any conclusions about the impact of violence on victims. This is also the case for judicial officers who believe that all victims of sexual violence will immediately call for help. Often these beliefs, held by judicial officers, are based on social myths about what rape victims do, or about how women and children conduct themselves. It is dangerous to rely on our own beliefs about the conduct of any class of people in society, whether it is about women, children or ethnic groups. This is because our beliefs are subjective, driven by stereotypes and personal experiences. It is always preferable to rely on the evidence to assess credibility. Objectivity is undermined by our subjective values and assumptions about social behavior.

Although the learned Magistrate’s reference to the conduct of victims of sexual violence generally was unfortunate, I do not however consider that her comments determined her finding that she believed the evidence of the complainant. In essence, she believed him because she found him to be a truthful, intelligent and confident witness (page 5 of the judgment).

This ground fails.

The burden of proof

The learned Magistrate directed herself on the burden and standard of proof at page 6 of the judgment. I do not consider, on a perusal of the court record and of the judgment that she in any way reversed the burden of proof.

Conclusion

For the reasons given in this judgment, this appeal is dismissed. There is no appeal against sentence. The Appellant must now serve the remainder of his term of imprisonment.

Nazhat Shameem
JUDGE

At Suva
5th September 2008