Krishna v State [1999] FJLawRp 32; [1999] 45 FLR 180 (23 August 1999)

[1999] 45 FLR 180

HIGH COURT OF FIJI ISLANDS

AVINESH KRISHNA & TUKOLI VISAWAQA

v

THE STATE

[HIGH COURT, 1999 (Fatiaki J) 23 August]

Appellate Jurisdiction

Crime: evidence and proof- need to consider the defence of each accused separately- rape- recent complaint- not corroborative- evidence of accused implicating co-accused- need for warning- Penal Code (C) Section 149.

Allowing appeals against convictions entered in the Magistrates’ Court the High Court emphasised (a) the requirement t trial magistrate consider the separate defences advanced bced by each accused (b) that evidence of recent complaint was not corroborative (c) that the person to whom the complaint was made should be called to give evidence and (d) that before acting on the uncorroborated evidence of a co-accused the Court should warn itself of the danger of doing so.

Cases cited:

>Anthony Steven v. R&#. R -&16 F.L.R. 202

R v. Could;24 Cr. App. R. 4 R. 44

R v. Evans 18 Cr. App. R. p>

R vi>R v. Pra. Prater (1959) 44 Cr. App. R. 83

Shinodra v. The State 34 F.L.R. 135

Appeals ag conviction iion in the Magistrates’ Court.i>&#1i>
A. Sen for the 1st Appelbr>2nd Appd Appellant in Person
Ms. A.s. A. Driu for tspondent
;
tiakitiaki J:
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On the 2nd vember,mber, 1998 the appellants were jointly charged with an offence of Rape before the LaMagistrate Court. They both pleaded not guilty to the chargcharge and were remanded in custody to await the trial. Eventually after numerous adjournments and several unsuccessful attempts to obtain bail, the trial began on New Year’s eve and lasted for five days spread over a fortnight in January 1999.

During rial at which thch the appellants were unrepresented, the prosecution called three civilian witnesses, - the complainant, her mother, and a former head teacher of the school which the complainttended; and the interviewiviewing and charging officers who exhibited the appellant’s caution interview records (Exs.3 & 7) and charge statements (Exs.6 & 8) respectively. The birth certificate (Ex.2) and a medical report of the complainant (Ex.1) was also exhibited pursuant to Section 191 of the Criminal Procedure Code (Cap.21). At thse of the prhe prosecution case the appellants elected and gave sworn evidence and each cal witness in his defence, nae, namely, the mother and wife of the second appellant.

At the clo the evidencedence the trial magistrate ‘adjourned for considering of judgment for 2 hours or so’. Upon his return the trial magistrate delivered a hy Ruling in which he found the appellants guilty as chargeharged. Five days later the appellants were sentenced each to five years imprisonment and five strokes of corporal punishment.

(1) n&#that ria trial wa c wa conducted fairly;

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(2)ټ the trial magistrate recterected himself on the evidence of t comt andoboration;

(3)&#16) ـ fai; failed to prop properly evaluate the evidence in the case including of thence witnesses; aes; and

(60; the sentences are hand excd excessive.

In ar the appeal counseounsel for the first appellant sought to highlight the unfairness of the trial by referring to various unsatisfactory features,udinge faiof the trialtrial magi magistrate to examine the complainant whot who was barely 14 years of age and described as a ‘slow learner’, as to her understanding of the oath before being sworn; his improper curtailment and confinement of the 1st appellant’s cross-examination of the complainant; misdirections as to the evidence of recent complaint and corroboration; and his failure to deal with the various inconsistencies in the complainant’s evidence as to the whereabouts of the 2nd appellant during the alleged rape by the 1st appellant.

The 2nd appt for his pais part although unrepresented, ably argued his appeal and produced a four page written submission in which he challenged the credibility of the complainant’s evidence of recomplaint and complains that that ‘(the magistrate) didn’t even try to understand what my wife and mother were explaining to the Court, that the complainant was not pulled from the road and there was no signs of rape in her and her physical appearance was normal’.
trial magistrate’s RULING which comprises ten typed-written pages which may be apportioned as follows:

- ـ &##160;< ټ1 1/2 pages&#/u> are devoted to omplainant&#ant’s evidence fed by&#160

- &##160;;ɘ< < #u>5;5 1/2 p1/2 pages of references ses and judicjudicial diealinh theents of rape; corroboration; the approach of the courts to corroboration andn and the the naturnature and relevance of evidence of recent or early complaint. general discourse on the lthe law is then followed by:

&#160 ـʔ 1 page in whichwhich the trial traistrate makes two findings of corroboration provided by two items of evidence na the al re(Ex.1) andevidef recomplaint by the complainplainant&#ant’8217;s mots mother (her (P.W.2); and this is followed by:
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- ټ ټ1 page page&#/u> dealing inabstract with theh the burden and standard of proof in ainal and;#160;

-&ـ҈& ټ o60; on ; on then the fina final pagl page onee one enco encounterunters the trial magistrate’s findings ashe guilt of the accused.

the above analysis of t of the contents of the trhe trial magistrate’s ruling it is immediately plain that more than half of it (7 pages) was devoted to citing legal authorities and legal propositions and only three pages relate to the evidence led before the court.

It is alain that the swhe sworn evidence of the appellants (which is nowhere set out in the ruling) was treated or considered (if at all) in the most summary dismissive manner. Not surprisingly the ece of the defence witnessesesses (of which there were 2) did not even warrant a mention let alone any consideration in the entire
ruling.

Indeed so pctory is thes the trial magistrate’s judgment in dealing with the defence evidence that it is possible to extract the only two sentences which directly refers to the defence. These are (at p.2) where he says:

8216;The second accuseccused denied raping her.’

at p.10) where he says:says:

‘I find vidence of the two accused so inherently incredible that no reasonable person could believelieve it.’

There is no ence oeverhto the 1st 1st accused denying the charge in the trial magistrate’s judgment. Mano Datt Shar Sharma v. R. 15 F.L.R.136 said at p.1r> ‘In so far as the the judgment indicates ates the learned magistrate’s process of thought in considering the nce ad, there is nothing to show that he took the defe defence case, and the evidence in supportpport of it, into consideration at all.’

and later his hip said:said:

&#821this case ther there may well have been good reasons for rejecting the evidence of the accused and of the witness called on his behalf. But there is nothing in the judgment to indicate that thidence was taken into accouaccount at all. ... It is not simply a matter of implicitly rejecting evidence of an apparently far fetched story told by the accused (or his witness).’

The relevant princip seis set out in the following passage in Garrow and Spence’s Criminal Law (4th edn p.365 where the lehe learned author’s say:

&#Where severa accu accused are involved it isit is frequently necessary ... to separate the evidence applicable to ... each accused and to direct the jury to con them separately.’
Anthonven v. R. 17 F 17 F.L.R.48 at p.54:

‘We doquestioestion for one moment that in a joint trial of several accused persons, a Magistrateld proceed in the same way as a jury or assessors would be d be directed to proceed. He must consider the case against each accused separately, being careful to distinguish the evidence admissible against one accused from that admissible against another. He must resist any temptation to bolster up a weak case against one accused by reference to evidence properly admissible only against some other accused (or by looking at the evidence as a whole).’

In the present caswas awas all the more encumbent on the trial magistrate to not only clearly identify and deal with the evidence against each accused separately given his assessof the complainant’s credibility and its apparent indt indivisibility, but also, because the nature of the defences differed in material respects. It was more than just a bare denial of opportunity.

Furthermoren the highlyighly incriminating evidence of the 1st appellant on oath implicating his co-accused, the 2nd appellant, in the offence, it was encumbent on the trigistrate to record or direct himself that although admissibissible as evidence against the 2nd appellant, nevertheless he should indicate either that he has ignored such highly prejudicial evidence or, at the least, made plain that he is aware of the dangers of acting on it unless corroborated (see: R. v. Prater) 44 Cr.4 Cr.App.R.83).

n next to deal with theh the corroborative evidence relied upon by the trial magistrate in his judgment, namely, the complainant’s medical report (Exnd thher’s evideevidence.

Statesel for her part iart in attempting to explain the various discrepancies in the medical report, accepted that ‘on its own it cannot amount (in law) to coration unless the accused admits sexual intercourse’ w17; which neither did.

At mose medical report port confirms that sexual intercourse had recently occurred with the complainant but this falls well short of amounting in law to corroborationn offence of rape committed by the appellants.
Quitinly the trialtrial magistrate misdirected himself when he said in his judgment (at p.8):
‘There was undoubtdoubtedly medical corroboration in this case.’

at p.9):

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‘So in respect of the element of consent or non-consent the evidence of the complainant is well corroed by medical evidence and other evidence (not identified) to show clearly lack of consent.sent.’

As for the complt’#8217;s mother’s evidence, the trial magistrate says in his judgment (again at p.8):

‘Even P#8217is evidence (nowhere set out in the judgment) corroborates victims. She told her mothemother about the rape as soon as she met h8217;

In this latter regt is t is note-worthy that the only finding of recent cent complaint in the trial magistrate’s judgment relates to the complainant’s claim that after being raped she had immediately gone to ‘one Roshni’s house’ in the neighbourhood and related the incident to her (see: p.41 & p.2 of the judgment).

No finding cent complaimplaint has been made relative to the complainant’s report to her mother (see: her evidence also at p.41 &) ‘at about 5.30 p.m.’ on the day of the incident (i.e. about 8 hours later) bur) but in any event such a complaint even if recent could not in law amount to corroboration.
Peceli Vosararawaarawa v. R. 16 F.L.R.202 which was referred to in the trial magistrate’s ruling, Hammett C.J. in rejecting the suggestion that such a complaint could amount troboration said at p.204:

‘In his judgment the learned trial magistrate said he accepted the evidence of Unaisi (the complainant) and held that it was corroborated by her complaint to her mother. He said that this was ample corroborain law.

Thinot so. The. The evidence of the female complainant was in fact not fully corroborated and heplaint to her mother wher was not corroboration in law (S>: R. v. EvansEvans 18 CrR.123; v. Coulthoulthread&#4 0;24 Cr.App.R.44).’

(my underlining)

In similar vein the Fije Fiji Court of Appeal sa&#160ohammmidullah Khan v. R 19 F.L.R.133 at 3 a34p.134:.134:

&#... it . it is weis well established that the evidenceomplaints made by the victivictim of alleged sexual assault, if made at the first opportunity and to a person in authority, are admissiblevidence, not as cors corrobor of n of the girl’s story, but for the purpose of showing consistency in her evidence.’

(my underlining)

Plainly again on this aspect the trial magistrate misdirected himself as to what evidence was capable of affording corroboration in law.

Furtherbefore evidence ence of recent complaint can to be admissibd relied upon, the person tson to whom the complaint was made must be called as a witness to testify as to the nature and circumstancder which the complaint wast was made by the complainant.

‘I have to thto the conclusion that there was an early complaint byvictim.’
This concn was unws unwarranted as being based solely on the complainant’s self-serving evidend cannot be relied upon as n as evidence of recent complaint. This too was a misdirection.

Int of the foregoing I ng I am firmly of view that it would be unsafe to allow the appellants convictions to remain. The appeals against conviction are allowed, tnvictions are quashed and the sentences set aside.
&#160
e exercise of the CourtCourt’s powers under Section 319(1) of the Criminal Procedure Code (Cap.21) and bearing id the guidance provided in d in the judgments of the Fiji Court of Appeal in Shinodra v. The State (1988) 34 F.L.R.135 an0;Dhani Chand v. R. Cr.App.35 of 1979 (unreported), I order a retrial before a diffedifferent magistrate.

(Appeals allowetrialtrial ordered.)