Qalovaki v State [2008] FJHC 399; HAA0111.2007 (4 April 2008)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0111 of 2007

Between:

STANLEY ALLEN QALOVAKI
(Appellant)

And:

THE STATE
(Respondent)

Hearing: 27^th March 2008
Judgment: 4^th April 2008

Counsel: Mr. A.K. Singh for Appellant
Ms S. Puamau for State

JUDGMENT

The Appellant was charged on count 1, with the rape of one Vani Miller. It was alleged that on the 25^th of March 2006, at Davuilevu Housing, Nasinu, he had unlawful carnal knowledge with Vani Miller without her consent. On Count 2, it was alleged that on the same day he had carnal knowledge of Vani Miller against the order of nature. He was tried, convicted and sentenced to 7 years imprisonment on each count. He appeals against conviction and sentence.

His grounds of appeal can be summarized as follows:

a. The learned Magistrate misapplied the law on corroboration.

b. The learned Magistrate failed to properly consider inconsistencies in the complainant's evidence.

c. The learned Magistrate failed to explain why he accepted the complainant's evidenced.

d. The learned Magistrate failed to consider the inconsistencies in the medical reports.

e. The learned Magistrate failed to consider the defence case.

The Appellant filed amended grounds of appeal. The additional grounds were:

a. The appellant was prejudiced by his representation by incompetent counsel.

b. The sentence was harsh and excessive.

The case history

The Appellant's case was first called in the Nasinu Magistrates Court on the 28^th of March 2006. He pleaded not guilty. On the 25^th of April 2006 he was represented by counsel. He was remanded in custody. The trial commenced on the 8^th of May 2006. The evidence of Vani Miller was that she was an 18 year old student at the Adi Cakobau School. She was related to the Appellant. His wife was (and is) her maternal aunt. On the 25^th of March 2006, she was at home in Davuilevu with the Appellant and his children. The Appellant's wife was away in Ba. The Appellant went out after 10am, and returned drunk. He told her to cook something, went out again and then returned. He sent the children away to the back of the house.

The complainant said that the Appellant then propositioned her and said he would marry her. She telephoned his wife and told her what had happened. She told her to go to a neighbour's house. However later in the night the Appellant told her to return to his house and the neighbour told her to go home.

He then told the children to go to sleep, called the complainant into the sitting room, pulled her down to a mattress on the floor, punched and slapped her and raped her. He then committed an unnatural offence. She them went into the room and told the children that their father had raped her. She went back to the neighbour's house where she spent the night. The next morning she told the neighbour what had occurred. When the Appellant's wife arrived, she also told her. The matter was reported to the police. She was examined by a doctor twice.

The evidence of the neighbour Mere Loga Sova was that at 12.30am she heard a knock on her door and saw the complainant there with the Appellant's children. The complainant sitting on the porch crying. They all slept at her house and went to church the next morning. After church the complainant, who was still crying, told her that the Appellant had done something to her the night before. Under cross-examination she said that the complainant had not told her that the Appellant had raped her or had sexual intercourse with her against the order of nature. She thought that "they just had sexual intercourse."

The Appellant's wife gave evidence that when she returned from Ba on the 26^th of March, she spoke to the complainant and the complainant described what the Appellant had done to her. They agreed to report the matter to the police. The record shows that in response to the court's questions, she was aware of the "privilege attached to communication between married couples." She continued to give evidence.

Corporal Linieta Namono gave evidence that the complainant in her initial statement had told her that she was raped. She did not say that she had also been sodomised.

The Appellant's caution and charge statements were tendered. In them, admitted to sexual intercourse but said that the complainant had consented. He denied penetration of her anus with his penis.

There were two medical reports. Dr. Timoteo examined the complainant on the 26^th of March 2006. She found a fresh tear on the hymen indicating recent sexual intercourse. Her diagnosis was "sexual assault." The complainant told her that: "she was home looking after her sister's husband when her brother-in-law, who was drunk, forced himself on her. He pulled her onto a mattress in the living room and forced her to have intercourse with him. This was her first sexual experience".

The second medical examination was on the 27^th of March 2006. It was specifically aimed at investigation any evidence of anal penetration and assault on the cheek. The history related to this doctor was: "At about 10am on Saturday 25/3 the brother-in-law slapped her on the right cheek and dragged her onto the mattress. His penis penetrated her vagina and then he slapped her again. He continued to have sex with her. He also penetrated her anus. She doesn't think he ejaculated. She was a virgin before the incident."

The doctor noted bruising around her vaginal opening, no hymen was present with a single abrasion on the anus which was tender. Her right cheek was mildly swollen and tender.

The first doctor, Dr, Timoteo was cross-examined on the contents of her report. She said she did not recall seeing bruises on the complainant's face. She said that the complainant's vaginal examination showed that there had been penetration of her vagina. She said she had not been aware of the allegation of sodomy and had conducted no examination for it.

The second doctor Dr. Narube was also cross-examined on the contents of her report. She said that there had been penile penetration of the vagina and of the anus, and that the anal area was very painful.

The prosecution closed its case. The case was adjourned to the 24^th of May 2006. The record then reads:

"Prosecution: Accused went to counsel's office and he stole some documents from his office. He is threatening his own counsel. Counsel has lodged a complaint at Valelevu Police Station.

Accused has hindered the proceeding, by threatening counsel. Ask for Accused to be remanded in custody.

Komaisavai: Concur with prosecution. I do not want to withdraw as counsel.

Accused: I do not want Mr. Komaisavai as my lawyer.

Komaisavai: I apply for leave to withdraw from this case on the grounds that the accused has terminated my service to him.

Accused: No objection."

Counsel then withdrew as counsel, and the trial was adjourned to the 1^st of June 2006 for hearing. The Appellant's bail was extended. He was told to find another lawyer.

On the 26^th of May, none of the parties was present but the court was given a notice of motion asking for a mistrial to be declared that Mr. Komaisavai was incompetent and had not conducted the defence well.

On the 1^st of June 2006, the Appellant was represented by Mr. Singh. A copy of the court record was supplied to defence counsel and the prosecution was given are opportunity to respond to the affidavits filed in support of the motion. On the 23^rd of June 2006, the prosecution asked for further tine. There were further adjournments until the 12^th of October 2006 when the prosecution filed an affidavit in reply. On the 3^rd of November the DPP's Officer handling the matter was abroad. On the 10^th of November, counsel for the defence was serving a term of imprisonment. The Appellant was advised to find another lawyer. On the 18^th of December the Appellant said he wished to waive his right to counsel and would represent himself. He asked for a trial de novo and said he had terminated the services of Mr. Singh. On the 24^th of January 2007 the court gave the Appellant a copy of the court record.

On the 5^th of March there was a hearing on the question of mistrial. He said that Mr. Komaisavai had not acted in his best interests, that the complainant should be cross-examined again and that he was aggrieved because the court had found a prima facie case. His wife also gave evidence but she agreed that she had no reason to call Mr. Komaisavai incompetent.

Sepesa Tukana, the Appellant's cousin gave evidence that he had only been present in court when PW2 was giving evidence. Vodo Finau gave evidence that she heard the evidence or none of the witnesses.

The prosecution called DPO Southern Epeli Talakubu who said that in his opinion the cross-examination by Mr. Komaisavai was competently done.

The trial magistrate refused to declare a mistrial on the 22^nd of March 2007 saying he had no powers to do so, and proceeded to hear the defence case. The Appellant gave sworn evidence on the 23^rd of April 2007. He said that he and the complainant had a consensual sexual relationship that he had not assaulted her nor sodomised her. He said that the medical evidence was inconsistent with the complainant's evidence and that she had lied in court.

Under cross-examination, he said he had fully penetrated the complainant's vagina and had not penetrated her anus. He said that the sexual intercourse was consensual.

The trial was then adjourned, and it continued on the 9^th of May 2007. During further cross-examination, he denied assaulting and raping the complainant. The court record has a judge's note that the Appellant was a very evasive and argumentative witness. The Appellant then said he wished to call a witness who was in Japan. However, after several adjournments the Appellant told the court that the witness did not wish to testify. Another witness Sakeasi Waikere of the Ministry of Agriculture gave evidence on the 6^th of July 2007. He said that on the 25^th of March 2006 he had been drinking with the Appellant from 11am to 7pm. At 7pm he went to the Appellant's house to call him to go to the QVS Club but his lights were out and he left.

The learned Magistrate delivered his judgment on the 19^th of July 2007. After reviewing the evidence and the elements of the offences, he said that the prosecution relied principally on the evidence of the complainant and on the evidence of recent complaint from PW2 (the neighbour), PW3 (the Appellant's wife) and the two doctors. The learned Magistrate found that there had been sexual intercourse, and that on the evidence of the complainant's distress and complaint, that it was non-consensual. He referred to the evidence of the second doctor, who had found the complainant to be "severely traumatized" with "permanent psychological scarring." He found as a matter of fact that the complainant did not consent, and that on the evidence of assault, the Appellant knew she did not consent. Further he found the second medical report to be consistent with the complainant's evidence of an unnatural offence. He convicted the Appellant on both counts.

After hearing mitigation, the Appellant reviewed the tariff for rape sentences, and started at 7 years imprisonment and after taking into account all mitigating and aggravating factors, sentenced the Appellant to 7 years imprisonment on Count l. On Count 2, he sentenced the Appellant to a concurrent term of 7 years.

The grounds of appeal

The first ground of appeal was that there should have been a corroboration warning because the only evidence implicating the Appellant was the complainant's. In Vasu v. The State [2006] AAU0011.2006 the Court of Appeal said that, while Balelala v. State [2004] AAU0003.2004S had abolished the mandatory requirement for corroboration warnings in sexual cases, it did not remove the discretion to administer a warning where a witness could be seen as unreliable. Counsel for the Appellant suggests that such a discretionary warning ought to have been administered in this case.

I cannot agree. The question of when a corroboration warning is indicated arises with monotonous regularity in Fiji only in sexual cases. The corroboration rule was abolished precisely because it was based on unfair gender discrimination. To exercise a discretion to give a corroboration warning on the basis that the witness is a rape victim is to give effect to the very mischief sought to be abolished in Balelala.

The courts in England and other common law jurisdictions have given some guidance on the sorts of case where a corroboration warning might be justified. In R v. Beck 74 Cr.App.R. 221, the English Court of Appeal (per Ackner LJ) such a warning was held to be justified when "there is material to suggest that a witness's evidence may be tainted by an improper motive." Beck was referred to with approval by the House of Lords in R v. Spenser [1987] UKHL 2; [1987] AC 128, 140 and was applied in R v. Witts and Witts [1991] Crim. L.R. 562. The improper motive in Witts and Witts was revenge for the assault which was the subject of one of the charges in the case. No warning was given. On appeal, the Court of Appeal held that it ought to have been given, because the witnesses although not accomplices, had a motive to give false evidence against the accused.

In Benedetto v. R.; Labrador v. R [2003] 1 WLR 154S, the Privy Council said that while it was undesirable to limit the circumstances in which a judge should give a warning, examples of such circumstances include untried prisoners giving evidence of a confession in prison. The question must be whether a witness might be motivated not by the interests of justice, but by self-interest. The form of warming which survives Balelala must wait for a future trial or appeal on point. However the case law suggests that there is no one form of warning and the words used depend on the circumstances of the case and the witness. (R v. Makajuola; R v. Easton [1995] 2 Cr.App.R. 469).

In Makanjuola it had been argued that a corroboration warning should have been given in a case of indecent assault although the need for such a warning had been abolished in England by the Criminal Justice and Public Order Act 1994. The Court of Appeal rejected this argument, Lord Taylor CJ saying:

"The circumstances and evidence in criminal cases are infinitely variable and it is impossible to categorise how a. Judge should deal with them. But it is clear that to carry on giving 'discretionary' warnings generally and in the same terms as were previously obligatory would be contrary to the policy and purpose of the 1994 Act. Whether, as a matter of discretion, a judge should give any warning and so its strength and terms must depend upon the content and manner of the witness's evidence, the circumstances of the case and the issues raised. The judge will often consider that no special warning is required at all. Where, however, the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may he thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness's evidence. We stress that these observations are merely illustrative of some, not all, of the factors which judges may take into account in measuring where a witness stands in the scale of reliability and what response they should make at that level in their directions to this jury. We also stress that judges are not required to conform to any formula and this court would be slow to interfere with the exercise of discretion by a trial judge who has the advantage of assessing the manner of a witness's evidence as well as its content."

This analysis of the law answers the Appellant's ground of appeal completely. It w as never suggested that the complainant was motivated by any improper motive in giving her evidence. Apart from a suggestion in the Appellant's sworn evidence that she had fabricated her allegation of rape and sodomy to get the sympathy and support of his wife, no improper motive was alleged. In the circumstances there was no reason to give a corroboration warning. This ground fails.

The second ground of appeal is that the evidence accepted by the learned trial magistrate as evidence of recent complaint, was inadmissible and was accepted in error.

However the learned magistrate said at page 4 of his judgment that the evidence "can only describe the complainant's demeanour immediately after the alleged incident." Clearly, he considered the evidence only as evidence of her distress, which in turn supported her evidence as to lack of consent. Indeed all the witnesses who gave evidence of the complaint's "complaint" gave evidence that she was crying and PW4, who saw the complainant at Nasinu Police Station at 6pm on the 26^th of March, said that she was crying and in a " state of shock." The learned Magistrate found the evidence distress to be inconsistent with consent. It is clear that he did not give to evidence more weight or value than he ought to have had. This ground also fails.

The next ground of appeal is that there was a failure to consider the inconsistent medical reports. The "inconsistency" was that the first dealt with vaginal examination, and the second with an anal examination. The second became necessary because the complainant had not initially told the police of the unnatural offence committed on her.

I do not consider the report, to be inconsistent. The doctors examined the Patient for the matters disclosed to them. It is not suggested were untruthful, or that the injury on the anus did not exist. Inconsistency is in the complainant's complaint to the police. She did not tell the police or the first doctor about the sodomy. It was in her second statement that she disclosed this, thus necessitating the second report.

It is correct that the learned magistrate did not in his judgment, refer to the two reports with their different findings. However, the evidence led at the trial explained the reports. The evidence of Cpl. Liniteta Navono was that the complainant told her only about the rape and Dr. Timoteo said that she did not examine the complainant's anus because she was not told of the sodomy. The "inconsistency" therefore is not that of the medical reports. It is of the complainant's report to the police. She was not cross-examined on this inconsistency but I doubt that the result would have been any different if she had been so cross-examined. The issue before the court was whether she consented to rape, and whether the Appellant had committed sodomy with her. The learned Magistrate clearly accepted her evidence on both these issues and it was not suggested by the defence that the complainant had been, for instance, sodomised by anyone else. Any cross-examination of her on her failure to tell the first doctor of the sodomy was unlikely to affect the result of the case. This ground is dismissed. There was no other "inconsistency" in the prosecution case.

The next ground of appeal was that the magistrate erred in that he failed to properly consider the defence case. In fact the defence position was clear. The Appellant's evidence was that he had consensual vaginal sexual intercourse with the complainant, He denied the unnatural offence. This is sets out in paragraphs 14 and 15 of the judgment. Throughout the judgment, the learned Magistrate continued to remind himself that the issue was lack of consent, and penetration of the anus. I find no error in his approach.

Ground 4 is that the Appellant was prejudiced by incompetent counsel. In his submissions, counsel for the Appellant points to a failure to cross-examine the complainant on the inconsistent medical, report, and a failure to object when the Appellant's wife gave evidence. I have already dealt with the alleged inconsistencies in the medical report. In relation to the Appellant's wife, who was competent but not compellable, the witness was clearly aware of her privileged status and continued to give evidence. Given the fact that it was she who reported the matter to the police with the complainant, any intervention by counsel is unlikely to have had any effect on her.

Having perused the court record I cannot accept that Mr. Komaisavai was incompetent in the way he was defending the Appellant. Another counsel may have asked different questions, or have taken another approach. However, in the absence of prejudice or clear injustice this is not a proper ground of appeal. The Fiji Court of Appeal said as much in Silatolu v. State [2006] AAU0024.2003S when it said (at paragraphs 121 and 122):

"The manner in which the Court of Appeal in England has approached the ratter of the competence of counsel is explained in Ensor v. R [1989] 89 Cr.App.R. 139, 144 where the court cited with approval the statement of Taylor J in the unreported case of Gautam 4 March 1987 that:

'..... it should be clearly understood that defending counsel in the course of his conduct of the case makes a decision, or takes a course which later appears to have been unwise, that generally speaking has never been regarded as a proper ground for an appeal'."

And at paragraph 122:

"However, in the (also unreported) case of Swain a few days later O'Connor LJ added that, if the matters about which complaint is made leave the court with any lurking doubt that the appellant might have suffered some injustice as a result of flagrantly incompetent advocacy by his advocate, it would quash the conviction. The court in Ensor adopted both as a correct statement of the position."

I can see no evidence on the record of "flagrantly incompetent advocacy" and no evidence of prejudice. I further consider that the learned trial magistrate was correct when he found he had no statutory powers to hear the trial de novo. The Criminal Procedure Code contains no such provision. Even if it did, there was no factual or legal basis of declaring a mistrial. This ground is dismissed, as is appeal against conviction.

Sentence

The Appellant submits that the sentence is wrong in principle and excessive. I do not agree. A 7 year term is at the lower end the tariff for rape and in the circumstances including the use of violence on the complainant, the sentence was not harsh or excessive.

On Count 2, the sentence imposed was 7 years. In principle the sodomy of a girl without her consent, and vaginal penetration of a girl without her consent, should attract the same sentence. However, statute decrees otherwise. The maximum sentence far rape is life imprisonment. The maximum sentence for an unnatural offence is 14 years imprisonment. Clearly Parliament's intention is that a lower sentence should result from a conviction for unnatural offence. The statutory provision appears to have failed to take into account the equal trauma and invasion inflicted on victims of rape and of forced sodomy. The Penal Code should be reviewed to remove any such injustice. In its present form, an unnatural offence conviction must attract a lower sentence than for rape. Although Connors J imposed a 7 year term for sodomy in State v. Khan [2004] HAC0006.2003L, the victim in that case was 7 years old, who had been sodomised at knife-point. I consider that in this case, a lower starting point of 5 years imprisonment should have been considered. After considering all mitigating and aggravating factors I would reduce sentence to 5 years imprisonment. The appeal against sentence on Count 2 succeeds. Sentence is reduced to 5 years imprisonment but must be served concurrent to Count 1.

Result

Appeal against conviction is dismissed. Appeal against sentence is allowed on Count 2 and the sentence reduced to 5 years imprisonment to be served concurrently with the 7 year term on Count 1.

NAZHAT SHAMEEM
JUDGE

At Suva
4^th April 2008