Khan v Reginam [1973] FJLawRp 26; [1973] 19 FLR 133 (28 November 1973)

(1973) 19 FLR 133

COURT OF APPEAL OF FIJI

v

REGINAM

[COURT OF APPEAL 1973 (Gould VP, Marsack enry JA), 15^th, 28^th November] Criminal Jurisdiction

Criminal law – evidence – tape recorder – admissibility of recording of conversation made between husband and wife – wheprivileged – whether ther obtained by a trick or a trap.

Criminal law – evidence – confession – admission of guilt on tape – whether obtained by a trick or trap.

Criminal law – sexual offences – recent complaints – when admissible in evidence – sentence.

Criminal law – witness – evidence inconsistent with previous statements – whether such evidence should have been rejected.

Criminal law – sentence – sexual offences.

The appellant was charged with offences of rape, incest and indecent assault upon his 14 year old daughter. Whilst on bail, a police officer engineered a meeting between the appellant and his wife in a car in which a tape recorder had been installed. The appellant when alone with his wife, confessed to having sexual intercourse with his daughter.

Held: 1. The tape recordings were properly admitted in evidence and there was no rule of law rendering such recordings inadmissible merely on the ground that it was privileged conversation between husband and wife.

2. Complaints made by a victim of a sexual assault, if made at the first opportunity, are admissible in evidence not as corroboration of the girl’s story but for the purpose of showing consistency in her evidence.

3. The judge gave full consideration to the discrepancies and inconsistencies and different statements of the daughter in his judgment.

4. The sentence for rape would be reduced to 7 years as the offence was virtually identical to that of incest in the present case.

Cases referred to:
Rumping v DPP (1962) 40 Cr App R 31962] 362] 3 All ER 256.
R v Stewart [1970] 1 All ER 689;&#a hretp://www.paclii.olii.org.vu/cgi-bin/LawCite?cit=%5b1970%5d%201%20WLR%20907" title="View Laww LawCite Record">[1970] 1 WLR 907.
Ibrahim v R [1914] AC 599; 111 LT 20.
Callis v Gunn [1963] 3ER 677; [1963] 3 WLR 931.
King v R [1968\3] 2 All ER #160;ef="http://www.paww.paclii.org.vu/cgi-bin/LawCite?cit=%5b19%5b1968%5d%203%20WLR%2039" title="View LawCite Record">[1968] 3 WLR 39R v Murphy (1965) N.I. 13>

Appeal aeal against convictions and sentences imps imposed by High Court of the Western Pacific sitting at Vila, New Hebrides.

K C Ramrakha for the appellant
S Lewis for the respondent

JUDGMENT OF THE COURT (read by MarJA) (28^{th Novembe3)-}

This is a is an appeal from the High Court of the Western Pacific sitting at Vila, New Hebrides. Appellant was charged on two counts of rape, two of attempted rape, two of incest an of attempted incest, togettogether with two alternative charges of indecent assault. Appellant pleaded not guilty to all charges. These were heard before a Judge sitting alone. On the 30^th April 1973, the learnedl Jual Judge entered convictions on two charges of rape, two of incest and two of indecent assault, and sentenced the appellant to eight years’ imprisonme each conviction for rape, 7 years on each conviction for ifor incest and two years on each conviction for indecent assault, the sentences in all cases to run concurrently. The present appeal is brought against the conviction and the sentence imposed in each case.

The offences were alleged to have taken place during the months of March and October 1972 on the island of Espiritu Santo in the New Hebrides, where the appellant was living with his wife and his daughter, Nigar Begum Khan, who was 14 years of age on the 27^th M972. In this judgment the the girl will be referred to as the complainant. Appellant’s wife was the girl’s stepmother, her mother being dead. The permanent domicile of the appellant and his family is in Fiji. The appellant came to New Hebrides in 1968 under contract with the British National Service for a term originally of two years; this was later extended at the request of the appellant. The medical examination of the girl on the 20^th of October, 19 the French Hnch Hospital, Santo, showed that she was not then a virgin and the medical certificate which was admitted in evident out that the loss of her virginity was not a recent event as there was no visible trace oace of internal injury or external violence.

The evidence adduced by the prosecution and upon which the convictions were based consisted almost entirely of:

(a) the testimony of the complainant herself; and

(b) a tape recording of a conversation between appellant and his wife, which will be referred to in more detail later in this judgment.

The grounds of appeal argued before us may be summarized as under:-

(1) that the learned trial Judge erred in law and in fact in admitting in evidence the tape recording of a conversation between the appellant and his wife.

(2) that the learned trial Judgment erred in law and in fact in admitting the evidence of the complaints made by the complainant.

(3) that in view of the inconsistencies and contradictions in the statements made by the complainant, they should have been rejected.

(4) that the sentences are harsh and excessive and wrong in principle.

In respect of the first ground of appeal it is necessary to set out in some detail the facts surrounding the taking of the tape recording.

The complainant made a full statement to the police in Santo on the 8^th December 1972. As a result of her complaint, appellant was arrested on 9^th Decemnd charged with incestncest. On 11^th December he formappeared beed before a Magistrate and was released on bail. Later, on 20^th ber, appelonce more appearepeared before the Magistrate ande and was released on bail on the condition that he remained in Vila and did nourn to Santo. Superintendent Liddle of the Police stated in evidence that he was anxious tous to ascertain the truth, and was further concerned to seek corroboration of the complainant’s story. He then decided to bring appellant and Mrs Khan together, and arranged to have a cassette recorder operating to make a record of their conversation. With that end in view, he asked Mrs Khan if she would like to see her husband in Vila; and when she agreed to this suggestion he arranged for her passage by air to Vila on 23^rd Decembe the 22^nd/sup> Decembperintendent Liddle edle explained to appellant that his wife would be coming the following day and offered to take him to the airport to meet his wife. Appellant was glad to accept. Before ca for appellant – who who was staying at the Rest House in Vila – on the morning of the 23^rd, the Superintendent installed a cassette recorder and microphone under the front seats of the car. He then drove appellant to the airport; and while appellant was waiting for his wife, the Superintendent switched on the tape recorder. Later he took appellant and his wife back to the car. He left them there, saying that he had to pick up another mail-bag and take it back with him. On two or three occasions, he returned briefly to the car and then went away saying that he had not yet found the mail-bag. Ultimately, he came back and drove appellant and his wife back to the Rest House in Vila.

During his absence, appellant and his wife discussed the matter very frankly and their conversation was fully recorded on the machine. In the course of these conversations appellant admitted in a most forthright manner that he had had sexual relations with his daughter; and he threatened to have them again, in front of his wife, when he and the girl were once more at home.

In our opinion, the evidence of the tape recording, if admissible, establishes beyond doubt the guilt of appellant on the charges of incest, and the question of its admissibility is thus vital to appellant’s case.

Mr Ramrakha raised the preliminary point that appellant was really in custody at the time of the making of the recording and as he had not been warned in accordance with the Judge’s rules, the tape recording was inadmissible. We cannot accept this argument. Appellant was out on bail though on condition that he did not return to his home in Santo. Subject to that limitation he was free to go as he pleased, and could not in any sense be regarded as being in custody, that is to say being detained against his will.

Mr Ramrakha’s main argument on this ground was that the police had set a trap for the appellant, that by this subterfuge he was induced to talk to his wife with the assurance that his conversation would not be overheard; and that in any event, conversations between husband and wife are privileged.

Dealing first with his last point, we are satisfied that this has been settled by the authoritative decision of the House of Lords in Rumping v DPP (1962) 46pp R 398. Mr RamraRamrakha urges that this Court is not strictly bound by a judgment of the House of Lords; but very good reasons would have to be shown before we could disregard it, particularly when it concerned an interpretation of the English Common Law. In that case, a letter addressed by the husband to the wife was given to a third person to post, but was handed over by the third person to the police.

The letter, which contained a confession of guilt was admitted in evidence at the trial, notwithstanding the submission of counsel that it was a rule of the Common Law applying both in civil and criminal cases that all communications made between husband and wife during marriage are inadmissible in evidence. In his lengthy judgment Lord Morris of Borth-y-Gest concluded that no such rule existed and that the letter had been properly admitted. We are satisfied that there is no rule of law that would render inadmissible the evidence of the tape recording in this case merely on the ground that it was a privileged communication between husband and wife.

In his argument on the manner in which the police had obtained a recording of the conversation between appellant and his wife. Mr Ramrakha argued that the action of the police was indefensible. The element of unfairness, in counsel’s submission, was the key to the whole matter. He relied on the judgment of the Court of Appeal in R v Stewart [1970] 1 All ER 689 at p.690 where it was saat that the Court coule refto admit certain tain evideevidence on the ground that:

“... this was obtained by a trap and the Court does not in generprove of a trap being laid for a man who is in custody.R.”

We have already held that the appellant was not at the material time in custody, so that the judgment in Stewart&#s case;case does not strictll apply. At the same time there are no doubt cases in which a confession obtained by a trick on the part of the police has been ruled inadmissible as not ba fre voluntary confesonfession within the principles laid down down in Ibrahim v R [1914] AC 599. In Callis v [1963]1963] ER 6 p.681 Lord Parker, CJ, referring to the discreticretion heon held by the trial Judge as to the admission of evidence, said:

&;Thisretion would certainly be exercised in excluding ding the evidence if there was any suggestggestion of its having been obtained oppressively, by false representations, by a trick, by threats, by bribes, or anything of that sort.”

In King v<160;R [1958] 2 Al 2 All ER 60 the Privy Council gives consideration to this extract from the Judgment of Lord Parker, CJ. In hisment Lord Hodson quotes with approval a passage from the judgment of the Courts-Martial Appl Appeal Court in R v Murphy&#1965) N.5) N.I 138, at p. 617-

“We do not read this passage as doing more than listing a variety of classes of oppre conduct which would justify exclusion. It certainly gives no ground for saying that any eany evidence obtained by any false representation or trick, is to be regarded as oppressive and left out of consideration. Detection by deception is a form of police procedure to be directed and used sparingly and with circumspection; but as a method it is as old as the constable in plain clothes and regrettable though the fact may be, the day has not yet come when it would be safe to say that law and order could always be enforced and the public safety protected without occasional resort to it.”

In Murphy’s case it cnly could be said said that the police had used a trick and set a trap for the appellant, by posing as members of the subve orgaion with which the authority suspected the appellant to have sympathies, and aski asking qung questions and eliciting replies on the subject of the charge. The Courts-Martial Appeal Court admitted the evidence, and their Lordships of the Privy Council in expressly asly agreed that that judgment.

Those cases, in which the evidence was held admissible, go a lother in our view than the present case. There the trick or the trap was intended to induce tuce the suspect actually to make some statement which would incriminate him. In the present case, all that could be said is that the appellant was given an opportunity to talk to his wife as he wished. Thee was no pressure put on him to do so. He might have decided not to discuss the matter with his wife until he arrived in the seclusion of his room at the Rest House in Vila. The actual confession itself was not obtained by a trick, though it could be held that the record of it was so obtained.

Upon full consideration of all the authorities which were cited to us, we have come firmly to the conclusion that the evidence of the tape recording was properly admitted, and that the learned trial Judge had correctly exercised his discretion in that regard.

With reference to the second ground, it is well established that the evidence of complaints made by the victim of alleged sexual assault, if made at the first opportunity and to a person in authority, are admissible in evidence, not as corroboration of the girl’s story, but for the purpose of showing consistency in her evidence. The evidence of complaints made by the girl in the present case to her stepmother or to Constable Biu, could properly be regarded as made at first opportunity and to persons in authority, and would therefore be admissible.

In his argument on the third ground, Mr Ramrakha drew our attention to several inconsistencies and in fact contradictions in the statements made by the complainant on different occasions. These discrepancies were referred to in great detail in his final address at the trial, and were carefully considered by the learned trial Judge in his judgment. He there drew attention to the evidence of A.S.P. Short to the effect that when she gave her first statement:

“the complainant had been in a very distressed condition: she had seemed tired and timid and at first reluctant to speak. He said initially she had been slow in speaking, had had apparent difficulty recollecting the facts and on one occasion had said she was shy of recounting what had happened.”

Later, the Judge points out that the statement was made on the 8^th December 1972, fing the come complainant’s flight from her father’s house late the previous night, her interview with the District A and an encounter with her father who told her to say nothing; and then a further medical ecal examination. In the Judge’s opinion all these must have been exhausting and upsetting for a girl of fourteen.

Later in his judgment the learned trial Judge says:-

“The complainant was most closely cross-examined as to the details of these two assaults and as to where they occurred. Apart from retracting her previous evidence in chief that the accused had had complete intercourse with her, the complainant maintained that the accused had on two occasion sexually assaulted her. She was not shaken in her account of where these assaults had occurred and no evidence was called to refute her answers.”

It is thus clear from the Record that the learned trial Judge gave full consideration to the discrepancies and inconsistencies and the different statements made by the complainant. After this full consideration he goes on to say in his judgment:-

“I believe the complainant’s evidence that she was twice sexually assaulted by the accused in Fiji in December 1970 or early 1971 and I am satisfied that her recollection of these events has got confused in the passage of nearly two years since these occurrences. I have, however, borne in mind this initial divergency in her evidence in considering the rest of her evidence on the charge preferred against the accused in this case. I am quite satisfied that the complainant is telling the truth.”

In these circumstances we do not think that we can say that the learned trial Judge was wrong in admitting the evidence and in concluding that the complainant was a truthful witness. He refers in his judgment to some outside evidence which could be corroborative of part of her story. But the most convincing corroboration of her complaint that her father had had sexual intercourse with her comes from the statement made by appellant to his wife in the police car, the recording which we have ruled to be admissible.

In the result we find that the charges of incest against the appellant were fully proved and his appeal against convictions for that offence must be dismissed.

We turn now to consider the two convictions for rape, alleged to have taken place in March 1972 (Count 1) and on October 23^rd, 1972 (Count 3).

With regard to Count 1 the finding of the learned trial Judge was in these words:-

“As regards Count 1 – the rape of the complainant near the Santo rubbish dump on a day unknown in March 1972: I am satisfied beyond reasonable doubt that the complainant was raped by the accused. I am satisfied that she did not consent to have sexual intercourse with the accused on this occasion but was physically forced to do so. I am satisfied by the complainant’s evidence as supported in this respect by that of Latchman Sharma (PW4) that the complainant complained to her stepmother as soon as she was taken home by the accused, and I accept this evidence of her complaint as showing lack of consent on her part.”

On this Count, as indeed on Count 3, there was no real corroboration of the evidence of the complainant; the tape-recording furnished adequate corroboration of the fact that sexual intercourse had taken place, but none on the essential ingredient of the offence of rape, namely lack of consent on the part of the girl. The learned trial Judge correctly directed himself as to the danger of convicting appellant on the uncorroborated evidence of the complainant, girl of fourteen. None the less, he was satisfied that the girl was a truthful witness and he accepted her evidence. We are unable to say that the learned trial Judge was wrong in his assessment of her credibility.

On the first count the learned trial Judge found that her evidence, to the effect that she had made a complaint at the first opportunity to her stepmother, was supported by the testimony of Latchman Sharma. The witness stated that he came close to the house to which complainant and her father had returned after the incident, and though he could not hear the exact words which were spoken he heard both the complainant and her stepmother talking and the stepmother crying. The learned trial Judge was in our opinion entitled to regard this evidence as lending support to the statement of the girl that she had complained.

With regard to Count 3 the trial Judge held that the evidence of Latchman Sharma to the effect that he had seen the complainant crying and vomiting the morning following the 23^rd October were consistent with lack of consent on her part to appellant’s having sexual intercourse with her. His evidence showed that shortly after the offence was alleged to have been committed the complainant was greatly upset; and the Judge was in our opinion entitled to accept this as some support of the girl’s evidence that she had acted through fear and had not really consented to her father’s actions.

It is perfectly true that in her evidence the girl stated in answer to a direct question at the trial that she had allowed her father to have intercourse with her; but she affirmed that she did this only because she was frightened of her father and was afraid that he might kill her as she was sure he had killed her mother. In our opinion the learned trial Judge was right in holding that violence with which the girl according to her evidence, was treated immediately prior to the act of sexual intercourse, her obvious distress and fear, and her running away from home were factors he could properly take into account in deciding whether or not the prosecution had proved beyond reasonable doubt that the complainant did not consent to the sexual acts committed upon her.

For these reasons we find that the appellant was rightly convicted on the two charges of rape and the appeal in respect of those charges is dismissed.

With regard to the convictions for indecent assault, we think these were justified on the evidence put forward at the trial and should be upheld by this Court.

There remains for consideration the appeal against the sentences imposed in the Court below. Mr Ramrakha contended that the sentences for incest of seven years imprisonment, the maximum provided in the Act, was manifestly excessive. The girl was a few months over 13 years of age when the offences were committed; had she been under 13 the maximum sentences would have been imprisonment for life. In our view, the sentences of seven years on each of the two charges, to run concurrently, are neither manifestly excessive nor imposed upon a wrong principle. The learned trial Judge was in a better position than we are to take into account local conditions in the New Hebrides. In any event, the conduct of the appellant towards his daughter was in our view such that nothing in mitigation could properly be urged.

With reference to the sentences of eight years’ imprisonment on the charges of rape, however, we think that while in many cases it would be appropriate to impose heavier penalty for rape than for incest, in the present case the offences are virtually identical. Accordingly we think that the sentences for rape imposed on the appellant should be the same as that imposed or the incest. We therefore allow the appeal against the sentences on the counts of rape to the extent that they are reduced to seven years’ imprisonment in each case, the sentences to run concurrently.

With regard to the sentences of two years – also to run concurrently – on each of the two charges of indecent assault, no argument was put before us that these sentences were excessive and this Court will not interfere with them.

For these reasons, all the appeals are dismissed with the exception of those against the sentences for rape, which are allowed to the extent already stated.

Appeal against conviction dismissed: appeal against sentences for rape allowed: sentences reduced.

-------------------------------------------