Levy v State [2010] FJHC 32; Criminal Appeal 41 of 2009 (5 February 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 41 OF 2009

DAVID WILLIAM LEVY
Appellant

V

THE STATE
Respondent

Date of Hearing: 21 January 2010
Date of Judgment: 5 February 2010

Mr. S. Sharma for the Appellant
Ms. L. Tabuakuro for the State

JUDGMENT

1. On the 21st May 2009 the appellant was convicted in the Lautoka Magistrates’ Court on his own plea of two counts of rape.

2. The counts charged him with the rape of the same victim, the first on 2nd October 2008, the second on 18th May 2009, the victim being his 10 year old niece.

3. Despite his plea, the appellant now appeals against his conviction on the basis that questions of law arise that render his pleas equivocal: in addition he appeals against sentence.

4. It is important in this context to note the actual process of the hearing below. From the Court record it can be seen that on 20 May 2009, the appellant was brought before the Magistrate directly from Police custody (the second offence alleged to be have been committed on the 18th May 2009). The Magistrate immediately asked the then accused (this appellant) "do you want to seek legal advice before plea is taken?" to which the accused replied "Plea can be taken now. I will speak for myself". The charges were then read and explained to the accused who said he understood. Having then elected trial in the Magistrates’ Court he voiced his plea to each charge by saying. "Guilty on my own free will". The Court then adjourned the matter to the following day for facts and sentencing.

5. On the following day (21st May), a summary of facts was submitted to Court along with the following exhibits:

1. The victim’s birth certificate

2. A medical examination form dated 4/10/08

3. A medical report dated 18.05.09

4. A further medical report dated5.10.08

5. An interview statement dated 31.03.09

6. An interview statement dated 19.05.09

7. A charge statement dated 19.05.09

8. A second charge statement dated 20.05.09

6. After the facts were read to the accused, he admitted them and he was convicted on both counts. The case was then adjourned to 27 May for sentencing when he was sentenced to 7 years on each count to be served consecutively.

7. In his amended grounds of appeal, Counsel for the appellant sets out 7 grounds of appeal against conviction and one global ground of appeal against sentence. His grounds against conviction when taken in toto, pray that the summary of facts and exhibits put before the Court are so defective that the Magistrate should have vacated the plea or at best made diligent enquiry into the inconsistencies within the documents.

8. In his first ground he claims that the summary of facts presented misled the Court into believing that the appellant had admitted committing the offences during his cautioned interview when in fact that was not true. The appellant was interviewed twice under caution; the first on the 31st March 2009 and the second after being accused of the second offence on the 19 May 2009. Rather oddly, although the Court record records receipt of this second statement, it is not included as an Exhibit in the Court Record. Counsel for the appellant however was able to furnish a copy of that interview. The comparatively detailed interview of the 31st March 2009 is totally exculpatory whilst the second interview is partially inculpatory and partially exculpatory. The appellant admits the sexual actus reus of the second offence, but nowhere is the question of consent addressed. Counsel submits that in the light of the content of these statements, the summary of facts relied on by the learned Magistrate is misleading and due enquiry should have been made into the conflict between the contents of the cautioned statements and the contents of the facts that were admitted.

9. The appellant is correct in that the summary of facts relied on recites the facts of each alleged rape in turn (ie 2nd October 2009 and 18th May 2009 respectively). It then concludes by saying "matter was reported to police. Accused person was arrested by police and later on interviewed under caution, he admitted committing the offence". He certainly did not admit committing the first offence in his first caution statement and admitted only the sexual act in his second statement without any reference to consent.

10. In my view the summary of facts is misleading . In referring to interview under caution it talks of "the offence" where in fact two offences were charged. Counsel for the State submits that because there is a confession in the second statement then that is obviously the admission referred to in the facts.

11. Such an assertion would appear to miss the point entirely. There is no confession to the first charge and there is no admission to rape in the second interview. To that extent, the accused’s plea of guilty below is totally in contradiction of what he had said to the Police and this should have been enquired into by the Magistrate before accepting the guilty plea. I would agree with the appellant that it was irresponsible of the prosecution to have sought to rely on such a sloppy if not erroneous Summary of Facts.

12. Absurd though it may seem, it is incumbent upon the prosecution to prove lack of consent in a charge of rape, even with a victim as young and as innocent as a 10 year old girl. It was in the case of R. v.Ronald Harding 26 Cr App R 127 (a 1937 case) that Humphreys J said:

"while a girl under the age of 16 is capable of consenting, and, as everyone knows who tries these cases, frequently does consent to an act of sexual intercourse with a man, the law has provided that such consent affords no defence to a man on a charge of carnal knowledge of a girl under sixteen; but there is no such provision as to the crime of rape. In every case of rape it is necessary the prosecution should prove that the girl or woman did not consent and the crime was committed against her will. It may well be that in many cases the prosecution would not need to prove much more than the age of the girl, and in this case that fact, coupled with the fact that the girl was a weakling is enough to prove that there was no consent on her part".

13. And so in the instant case, it would probably take little for the prosecution to prove that a 10 year old being forcibly taken by her 21 years old uncle was not consenting to the act but that is irrelevant to the legal requirement that the element of consent be dealt with and in this Summary of Facts there was no reference whatsoever to the question of consent, neither for the first rape nor for the second. Such a deficiency in the facts being put to the accused to admit should have set off alarm bells in the Magistrate’s mind.

14. It is the appellant’s second ground of appeal that the learned Magistrate erred in law in not taking into account the exculpatory statements made by the appellant in his cautioned interview. This ground obviously flows on from the first ground and the Court has dealt with this ground in the preceeding paragraphs.

15. As Gates J (as he then was) said in Anaia Nawaqa & Others v State HBM 14 of 2000L

"it is a a sound and safe practice in Fiji, as was done here, for the prosecution to provide the Magistrate with copies of the accused’s police interview statements where the accused is not represented. When deciding whether he could safely enter a conviction to the very serious charge of rape, and after examining each statement and the medical report, the Magistrate where appropriate could raise with each of the Appellants who had provided an exculpatory explanation, whether each still persisted with that line of defence" and later

"Magistrates will exercise their good judgment in choosing which elements of an offence need to be raised with an unrepresented accused".

It is unfortunate that the Magistrate did not do so in this case.

16. The appellant’s third ground prays that the learned Magistrate erred in law in admitting the Medical Report of the victim dated 4th October 2008 which was not obtained with the consent of the victim or her next of kin.

17. This medical report (exhibited as exhibit 2) is silent as to consent either by the young girl or her mother. Counsel for the State submits that it highly unlikely that the child’s mother would allow an intimate medical examination of her 10 year old child without consent. Another Report does have the signature of the mother. There is no evidence before me as to lack of consent; the fact that the consent "box" in the form has not been completed proves nothing either way and in any event this does not go to proving or negating any particular element of the offence.
This ground must fail.

18. The appellant fourth ground pleads that the learned Magistrate erred in law and fact in failing to properly analyse the two medical reports dated 4 October 2008 and 15th May 2009 which reports did not support the charges. He submits with respect to the first report that the "history" given by the victim viz: "Uncle took her in the room and had sex with her on Thursday afternoon approximately 5pm. This was third time . 1st incident April 2008" does not support an allegation of rape it is very ambiguous and could cover a very wide range of activity short of rape. He argues that when this ambiguity is coupled with a later medical finding in the report "vagina – normal hymen. Hymen opening measuring 10mm" it should have alerted the Magistrate to an apparent contradiction between "having sex" and "normal hymen" which should have been investigated. He submits that the problem is exacerbated by the professional conclusion of the good doctor being "normal vaginal exam does not exclude possibility of sexual abuse". Included in the exhibits before the learned Magistrate was a letter dated 5th October (that is the day following the first medical examination) from the very same doctor written to the Senior Welfare office in which he states "no hymenal tears or scars noted?" then, "in my opinion a normal vaginal exam does not exclude sexual abuse".

19. In reply to these seemingly illogical and contradictory findings and on the absence of clarity in the history given, Counsel for the respondent submits first that the findings could be indicative of only partial penetration of the vagina and secondly she relies on the judgment of Scutt J in Volavola v. State [2008] FJHC 259 which found that no matter if the Summary of Facts or a medical report were unsatisfactorily worded, the fact is that the summary of facts had been explained to the appellant and he obviously understood the elements of the offence he was admitting.

20. In my view this submission by learned Counsel for the State is misguided if not naïve. The medical report certainly appears to defy logic and it cries out for rationalization. It is also true that the "history" given is given merely by way of a guide to the doctor performing the examination, to "set the scene" as it were to legitimize the examination. The vague and ambiguous history given by the child takes the appeal no further because this history is not evidence per se, but when it is coupled with the vague and illogical findings of the good Doctor, it provides yet another warning bell for the learned Magistrate to examine the plea of guilty.

21. In the second limb of his ground four, Counsel brings the Court’s attention to the medical report of 18th May 2009 in which once again the "history" related by the young girl patient is vague and fails short of an allegation of rape. This Court’s observations on the relevance of the history given by a patient pertains to this report as well. It is not evidence and is not intended to be such.

22. In the appellant’s fifth ground he submits that the guilty plea should have been vacated "since there was ambiguity during the charging of the appellant".

23. On the 19th May 2009, the accused was charged with 2 counts of attempted rape and then on the 20th May 2009 before being taken to Court was charged with one offence of rape on the 18th May 2009. The appellant prays that these two conflicting charge sheets should have themselves put the learned Magistrate on notice that due enquiry should have been conducted into the plea of guilty.

24. Counsel for the State submits that it is not only normal for charges to be amended, substituted or withdrawn before an accused appears in Court, it is nevertheless the prerogative of the prosecution to lay the charge they want to. She further adds that a change of charge has no bearing whatsoever on whether the plea is equivocal or not. She submits that as the accused’s story changed, so did the charges change.

25. It is quite apparent that the two different charge statements before the Court are ambiguous and poorly prepared. Indeed the first charge statement dated 19th May 2009 charges him with 2 counts of attempted rape, the first said to be "sometimes in April last year, 2008", and the second with no date mentioned whatsoever. The second charge statement charges him with rape on the 18th May only. On the basis of the 2 charge statements, the accused should have gone to Court facing one charge of attempted rape and one charge of rape, yet the charges put to him in Court were 2 charges of rape. He had never been formally charged with rape in respect of the events on 2nd October 2008. Even in the first charge statement he is charged with attempted rape "sometimes in April last year, 2008" and not October 2008.

26. This State of affairs was not only extremely sloppy but glaringly improper and these charge statements being before the Magistrate should have alerted him to a most unsatisfactory investigation and preparation of the case against the accused.

27. The accused’s sixth ground of appeal prays that the summary of facts as presented does not contain all the essential elements of the offence, hence the entire proceedings was a nullity.

28. This ground is but an extension of the appellant’s first ground and has been dealt with in this judgment at paragraphs 12 and 13.

29. The seventh and final ground of appeal prays that the learned trial Magistrate erred in law in not giving the Appellant any opportunity to seek legal representation resulting in injustice and prejudice.

30. The accused argues that the right to counsel was not properly put to him and as an unrepresented accused every care should have been taken in ensuring that he knew of those rights.

In Suren Singh & others v. State [2000] Crminal Appeal 79 of 2000, Shameem J said

"For the accused to make an informed choice, he/she must be told of these rights. (emphasis in the original). And, because the failure to communicate these rights, and the absence of proper representation may lead to a finding that a hearing was not fairly conducted, the person responsible for communicating these rights is the Magistrate before whom the accused first appears. Finally, for the right to be communicated at the most meaningful time, it must be explained before the plea is taken".

She then went on to lay out a formula for Magistrates to follow before the plea is taken by suggesting that they say:

"1. Before you plead to the charge, I must inform you that you have the right to defend yourself, to instruct a lawyer of your won choice, or if you wish to apply for a lawyer on legal aid.

2. Do you wish to instruct your own lawyer?

3. Do you wish to apply for legal aid? If the answer to (2) and (3) is no then the Magistrate should hear the plea. If the plea is one of "guilty", the Magistrate should ask:

4. Are you pleading guilty voluntarily or have yu been pressured or induced to do so?"

31. In this case the Magistrate certainly did not follow this formula or attempt to even satisfy the elements of the formula. He cursorily said to the unrepresented accused "you are charged with serious offences of rape and do you want to seek legal advice before plea is taken?"

To treat the accused in such an off-hand manner with regard to legal representation is seriously curtailing his rights, especially so when he is young and has come to Court straight from custody, obviously without time to reflect properly on his fate.

32. In R. v. Blandford Justices, ex parte G. (an infant) [1966] 1 All ER 1021, Widgery J (as he then was) said at 1026C:

"In cases however, where the accused is not represented or where the accused is of tender age or for any other reasons there must necessarily be doubts as to his ability finally to decide whether he is guilty or not, the Magistrate ought, in my judgment, to accept the plea as it were provisionally, and not at that stage enter a conviction. He ought, in my judgment, in these cases to defer a final acceptance of the plea until he has had a chance to learn a little bit more about it, and to see whether there is some undisclosed factor which may render the unequivocal plea of guilty a misleading one". He went on to say (p 1026E) that a conviction be safely entered once the Magistrate feels "that nothing has been disclosed to throw doubts on the correctness of the plea of guilty".

33. In this case there is not one thing that throws doubts on the correctness of the plea. There are at least four grave matters that would each one of them, give rise to doubting the justification for the plea. They are the misleading Statement of Facts, the ambiguous and illogical medical report, the inexplicable charge statements and last and most importantly the denial of the accused’s rights as to representation.

34. The procedure followed below was most unfortunate and resulted in a serious miscarriage of justice and this appeal must and does succeed.

35. Given that the appeal against conviction succeeds, the appeal against sentence falls away.

36. The convictions and sentences are quashed, the guilty pleas vacated and the matter remitted to the Magistrates Court for trial de novo. The appellant is to appear in the Lautoka Magistrates Court on Friday the 25th February 2010 at 9.15am.

37. The appellant is bailed as follows:

1. In his own recognizance, $250

2. One surety of $500

3. To attend Court when required and to keep the peace.

4. To live away from the complainant’s village, and not to meet or contact her, or any other potential prosecution witness

5. To notify address to the Court and not to move from that address without leave of this Court.

Paul Madigan
Judge

At Lautoka
5 February 2010