Wise v State [2009] FJHC 75; HAA107J.2008 (20 March 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 107/2008

Between:

HERBERT WISE
Appellant

And:

THE STATE

Respondent

Counsel: Appellant in person
Ms S. Hamza for State

Hearing: 13th March 2009
Judgment: 20th March 2009

JUDGMENT

[1] The Appellant appeals against conviction and sentence for one count of indecent assault and one count of criminal trespass. He was charged on the 13th of May 2008, with unlawfully and indecently assaulting Nurslin Powell Wise, and with entering the dwelling house of Nurslin Powell Wise without lawful excuse.

[2] The case was first called on the 13th of May 2008, and after being informed of his right to counsel (which he waived) the Appellant pleaded not guilty on Count 1, and guilty on Count 2. The court noted that the Appellant appeared to have been assaulted because he had a swollen and black left eye. The Appellant was remanded in custody because of tension between him and the husband of the victim. He agreed to be remanded saying that the victim’s husband had "taken the law into [his] own hands."

[3] On the 9th of June 2008, the summary of facts on Count 2, was read out. The Appellant disputed it, the guilty plea was vacated and a hearing date fixed for the 6th of August 2008. The Appellant was granted bail.

[4] The trial commenced on the 6th of August. The evidence of Nurslin Liangi Mary Powell Wise was that on the 10th of May 2008 she was at home. She had dinner after 10pm, then drank yaqona with her mother-in-law until 1am. She heard her husband’s voice from the beach and she joined him there. He was drinking with his uncle and cousin. He dropped her home and she went to sleep with her daughter. After 3am the Appellant came into her room and touched her private parts. She sat up and told him to leave the room. He touched her face and told her to look at him. She pushed him away and ran out of the room. She went to the beach and told her husband what had happened. She also told her mother-in-law. Under cross-examination she said she did not shout when the Appellant touched her private parts because she was frightened that he would do something else. It was suggested to her that she and the Appellant had previously had a brief "affair" and said she had never gone out with him although they had all had a drink together.

[5] Her husband also gave evidence. His evidence was similar to his wife’s. He further said that his wife told him on her second trip to the beach, that his uncle Herbert had come into her room, and touched her private parts. He then went to look for the Appellant. The Appellant denied doing anything to the victim and one of his cousins hit the Appellant.

[6] In cross-examination it was suggested to him that he had accused the Appellant of blocking his wife’s mouth and trying to rape her, but he denied that he had said this to the Appellant.

[7] The caution interview of the Appellant was tendered without objection. In it the Appellant said that he had been drinking with a group of men including John Wise (the victim’s husband) at Wainivolio until 1am. He then went to the house of John Wise to call Nurslin. He entered the house and went to the bedroom. The light was on and he woke Nurslin up. He pulled her blanket and called her name three times. She woke up and walked to the kitchen and said her mother-in-law would be coming. He admitted putting his hand on her face and saying ‘look at me’ but denied touching her private parts. He said he only wanted to confirm that Nurslin would drink with him. He said that in the past, Nurslin had been flirting with him.

[8] There was a case to answer. The Appellant gave sworn evidence. He said that he did enter the victim’s house but that he only wanted to talk to her about previous incidents when she had flirted with him. He said he did not indecently assault her and that he could not have touched her face and touched her private parts at the same time. Under cross-examination he said he had entered the bedroom because she had flirted with him and had talked about having a lesbian relationship with her sister.

[9] Judgment was delivered after the Appellant made submissions. The learned Magistrate defined "indecent assault" as an act or acts which are immodest, obscene or countenanced standards of decent behavior. She accepted the evidence of the complainant saying that there was no reason for the complainant to run out to her husband if the Appellant had only come to the bedroom to talk. She said that the Appellant did not present himself as a truthful witness and went to some length to attack the victim’s character. She found the case against the Appellant proven beyond reasonable doubt and convicted him on both counts. She sentenced him after he refused to mitigate, to 2 months imprisonment on Count 1, and 21 months imprisonment on Count 2, to be served concurrently.

[10] The grounds of appeal are that the learned Magistrate was swayed by emotion because she was a woman, that the victim was incapable of belief because the Appellant could not have been touching her private parts and her face at the same time, that there was no medical evidence of a forced penetration or an injury, that the case was fabricated by the police because of a long-standing grudge against him, and that he was assaulted by the victim’s husband, which assault had not been investigated.

[11] The State submitted that the learned Magistrate accepted the evidence of the victim because the victim was a credible witness, that the victim was cross-examined by the Appellant and he did not raise the question of any forced penetration, that the medical report was tendered and that there was no basis of alleging a fabrication of the evidence by the police.

[12] At the hearing of this appeal, the Appellant objected to a female judge hearing the matter. He said that the trial magistrate had been female and biased against him because of his gender. I explained to him that the gender of the judge or magistrate can never be, on its own, the basis of a claim of bias. If this were so, then the prosecution could object to a male judge hearing a sexual assault case on the basis that male judges are biased against women. His objection to a female judge and similarly his ground of appeal based on the gender of the learned Magistrate could not be sustained. Nor could his submission of his petition of appeal, that the victim was not worthy of belief because biblically, women are by nature deceptive and untruthful.

[13] Having perused the record and the way in which the trial was conducted I consider that the proceedings were fair, transparent and predictable. The victim’s evidence was, up to the incident in her room, corroborated by the Appellant’s own version of the facts. The only matter in dispute is the nature of the Appellant’s touching of the victim. The learned Magistrate preferred the victim’s evidence. There was nothing inconsistent with the Appellant touching the victim’s private parts and her face in the course of the same incident. On questions of fact and credibility an appellate court should not lightly interfere with the decisions of the trial court.

[14] Nor is there evidence of a police fabrication. Indeed the Appellant did not dispute his police statement which was in any event identical to his sworn evidence in court. Nor did the Appellant put to the police officer Constable Makutu, in the course of his evidence, that the police had fabricated the case against the Appellant.

[15] For these reasons the Appellant’s appeal against conviction is dismissed. He does not appeal against sentence. However the sentence for indecent assault is within the tariff for the offence, and the concurrent sentences are correct in principle because the trespass and the assault were both part of one criminal transaction. The Appellant has a number of previous convictions (although none for sexual assault) and was not entitled to the leniency usually shown to a first offender. The assault was committed on the Appellant’s nephew’s wife and in the circumstances 21 months imprisonment was correct.

[16] This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
20th March 2009