Draunimasi v Reginam [1977] FJSC 138; Criminal Appeal 25 of 1977 (5 August 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL No. 25 OF 1977

BETWEEN

VONIVATE DRAUNIMASI
Appellant

AND

REGINAM
Respondent

Dr. M.S. Sahu Khan, Counsel for the Appellant
Mr. Ikbal Khan, Counsel for the Respondent

JUDGMENT

The appellant was convicted in a magistrate's court for the crime of rape and was sentenced to four years imprisonment on 14/2/77. He was not convicted until more than 2 years after he first appeared before the Magistrate on 24.1.75. By the time the trial commenced there had been sixteen mention dates.

On 18.6.76 two defence witnesses had been called by the appellant and an adjournment was granted to allow the appellant to trace some additional witnesses. Thereafter there was adjournment from month to month until on 29.12.76 the magistrate quite rightly refused to grant any further adjournments for the appellant to trace his alleged witnesses. The appellant then close his case. I am inclined to the view that the magistrate would have been justified in refusing any further adjournment at a much earlier stage. If a person charged with a serious offence has good sound witnesses one may expect that he will keep in touch with them.

The evidence led by the prosecution showed that the complainant who was 16½ years on 23/1/75, the date of the offence, was with her boyfriend in the late evening. They went towards the Catholic School compound and noticed that the appellant was following them. His persistence was sufficiently disturbing to cause them, once they were inside the compound to hide under one of the school buildings but after searching around the appellant located them and they then tried to run away from him. The girl tripped and fell and then the appellant overtook them and explained that he was the night watchman of the school and that they were trespassers. He said they were many police in the vicinity and that the boy friend should take a certain route to avoid detection by the police and he (appellant) would escort the girl by another route. Having thus got rid of the boy friend the accused raped the complainant.

The accused's evidence-in-chief amounted to little more than a denial but his defence was revealed when he was cross-examined. It was to the effect that he was with some companions including his girl friend (D.W.2) having a drink near the school compound when they saw a man running from the compound and the accused decided to investigate because the man may be a thief. Accordingly he went into the compound and he then happened to see the complainant running. He says he asked if she had been stealing and that she told him her father had chased her and he (appellant) says that at this time the police appeared and arrested him. He denied having intercourse with the complainant. D.W.1 and D.W.2 who is the appellant's de facto wife supported the testimony.

P.W.10, a constable, who was one of the police called to the scene saw the appellant with the girl who was weeping and who complained at once that the appellant had raped her. The appellant denied the allegation.

After his arrest the appellant made a statement to P.W.11, Police Supt. Jone Sawau, in which he said he stumbled over the complainant who was lying in the grass. In his statement the appellant said that the complainant explained her presence in the compound by saying that she was running away from her father. Thereupon she begged appellant to have intercourse with her and tried to pull him on to the ground; then she removed her shorts and the appellant succumbing to the temptress had intercourse with her at her request.

There were thirteen witnesses for the prosecution and three for the defence.

The grounds of appeal are briefly that the Magistrate -

1. Did not properly direct himself in evaluating the evidence of the witnesses in that,

(a) he assessed the credibility of witnesses on demeanour alone,

(b) rejected the defence evidence because he accepted the prosecution evidence,

(c) did not consider other relevant inconsistencies in the prosecution evidence.

2. Did not properly direct himself on the issue of corroboration and misdirected himself in treating the evidence of Jone Sawau as sufficient corroboration.

3. The verdict is unreasonable and cannot be supported having regard to the evidence as a whole.

Dr. Sahu Khan for the appellant submitted that it is the Magistrate's duty to evaluate the evidence of the witnesses and this he failed to do.

The Magistrate's reference to the evidence was undoubtedly sketchy in the extreme and it would have been preferable for him to record a more detailed and analytical reference to the evidence as a whole. He referred to the evidence of the complainant and her boyfriend and he said in his judgment,

"I have considered the evidence of P.W.2 the complainant and P.W.6 Lilo and observed their demeanour in the witness box. They were each cross-examined at lengthy by the accused and I found that there was nothing in their demeanour to suggest that they got together and made a false story ...... ."

That statement by the magistrate shows that he had taken careful notice of these two witnesses but he also made reference to other prosecution witnesses whose evidence supported some aspects of the evidence of the complainant and her boyfriend. Thus earlier in his judgment he said when describing how the appellant was pursuing the couple,

"The complainant had yelled out once when she had tripped and fell on the ground. Hearing this yelling some Indian family members came to the scene and after some conversation they left".

In that connection the complainant had said in evidence that when she tripped she called out for an Indian called Daniel, a neighbour of her sister who lived nearby, that an Indian and his wife appeared but the appellant having persuaded them all that he was the school's night watchman the Indians went away. P.W.6, the complainant's boy friend, gave evidence that he saw an Indian appear when the complainant called out. P.W. 8, an Indian male said he heard a girl call 'help Daniel help'. He went to the scene and saw the appellant and the complainant and the appellant said he was the school watchman. P.W.8 prompted the complainant's sister, P.W.9, who lives nearby, to summon police help.

P.W.7, the priest in charge of the school in question, stated that appellant was not employed by the school as a caretaker or watchman.

If the magistrate believed these prosecution witnesses then they supported not only the evidence of the complainant but also that of her boy friend in important details which could help the magistrate to accept the complainant and her boy friend as truthful. The evidence that the appellant falsely claimed to be the watchman at the school would no doubt give reason to believe that the appellant had an ulterior motive in telling such a lie and that the motive was to get rid of the boy friend by assuming an authority he (accused) did not possess and thereby contriving to leave the complainant alone with the appellant.

The magistrate also referred to the medical evidence as supporting the complainant's evidence of intercourse taking place that night. Although the reference was brief I do not think it was accidental.

The magistrate was not basing his acceptance of the complainant's evidence and that of her boy friend on demeanour alone; his judgment shows that he had already referred to the evidence of the Indian in connection with the complainant's call for help and that of a doctor on the issue of sexual intercourse to which I will refer later.

A similar ground of appeal was raised in Mohammed Abdul Razak v. R., Cr. App. 80/72 before the learned Chief Justice who quoted the following observations from a judgment of Lord Shaw in the House of Lords in Clarke v. Edinburgh Tramway Co. 1919 s.c. (H.L.) 33,

"When a judge sees and hears witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the judge makes any observation with regard to credibility or not."

The Chief Justice again considered a similar ground of appeal in Jan Barkat Ali v. R., Cr. App. 59/72 and he referred to the judgment Blair-Kerr J in Ng Pui Fong & Ors. v. R, H.K. Cr. App. No. 354 of 1963. There, that learned judge of very considerable and wide experience in criminal law stated,

"In making his findings of fact, a magistrate is not required to write what amounts to a series of character studies of the witnesses who have testified before him. If he chooses to give reasons, such reasons when taken in conjunction with the written record of the evidence may enhance the value of the magistrate's judgment. But it frequently happens that it is the general impression which a witness gives to a magistrate which convinces him that a witness is truthful or otherwise."

In the instant appeal the magistrate stated towards the end of his judgment that the accused and his two witnesses had given an entirely different version. I have referred to their version which differs greatly from that given by the prosecution witnesses. The magistrate repeatedly very little of the defence evidence in recording his judgment but it would not be correct to assume that this necessarily demonstrates a failure to consider it. In fact at the very outset of his judgment he says the accused has suggested that the prosecution witnesses have concocted a story against him. The accused said that he was innocently partaking in a drink with his companions when the police arrived and this very evidence was adverted to by the magistrate at the beginning of his judgment and to the fact that his two witnesses supported him.

In my view the magistrate's judgment reveals that in concluding that the prosecution witnesses were truthful he had not overlooked or ignored the defence.

Ground 1(b) complains that the magistrate rejected evidence because he accepted the prosecution evidence. No particulars whatever were presented in the grounds of appeal to support this contention. For a magistrate to state that he disbelieved the defence because he believed the prosecution is quite fatal and would be disastrous mistake for a magistrate to make after a long and careful trial. An accusation of so serious a nature should not be levelled at a magistrate without giving particulars in a petition of the words used by the magistrate which infallibly reveals so erroneous an approach. It is not the kind of ground which can be supported by submitting that an overall picture reveals that the magistrate rejected the defence case because he accepted that of the prosecution. Dr. Sahu Khan referred to Lockhart-Smith v. Republic (of Tanzania) 1965 A.E.L.R. 211 in which the trail magistrate used words which almost literally said he disbelieved the defence because he believed the prosecution. The learned Judge in that case observed that such a remark demonstrated that the magistrate had not weighed the prosecution case against that of the defence. In my view it would be wrong for an appellate court to infer generally from a judgment that a magistrate had adopted such an approach. It must be strictly shown that the magistrate used words from which the conclusion can fairly be drawn than that he disbelieved the defence because he believed the prosecution. In Jack Fields v. R., 26 Cr. App. R. 211 Du Parcq J. said with regard to the drafting of appeals,

"If misdirection is complained of it must be stated whether it is one of law or of fact, and its nature must also be stated. If omission is complained of, it must be stated what is alleged to have been omitted. It is only placing an unnecessary burden on the Court to search through a summing up and the transcript of evidence to find out what there may be to be complained of, but it is also unfair to the prosecution ..... ."

Quite recently the Court of Appeal (Cr. Division) in R v. Nicco, Cr. L. Rev. 1972, 420 said,

"It is the duty of counsel who settle grounds to see that they are properly particularised. General grounds are of little assistance and do not comply with the rules."

The words used by magistrate which directly and specifically show that he disbelieved the defence because he believed the prosecution will not be many and they should be given as particulars of that infallible ground of appeal.

Dr. Sahu Khan, at the hearing, referred to p. 28 of the typed record containing the penultimate paragraph of the judgment at lines 9 to 13 which read:-

"I accept the evidence of the witnesses Jone Sawau and his evidence provides sufficient corroboration. The accused and his two witnesses told the court a different version. I reject their evidence."

Those sentences must be considered in their context but even as they stand the magistrate cannot be said to state that he rejects the evidence of the appellant and his witnesses because he believes that of Jone Sawau.

Prosecution witness Jone Sawau, a police superintendent, took a statement from the appellant at the police station. The Magistrate was referring to that statement when he wrote the above quoted words and he was considering whether Jone Sawau's evidence contained corroboration of the complainant's evidence. I have already mentioned that statement in which the appellant said the complainant stripped and begged him to have intercourse with her and that he obliged. The appellant denied in cross-examination that he had told Supt. Sawau that he had had intercourse with the complainant. He also denied in his statement that he had described himself as the night watchman and chased the boy friend away and he denied having seen the complainant's boy friend that night or the Indian male, P.W.8. When he gave evidence the appellant, in cross-examination, denied admitting to Supt. Jone Sawau that he had had intercourse with the complainant and still maintained that he had not seen the boy friend (P.W.6) or the Indian P.W.8. It was necessary to decide whether Jone Sawau had fabricated the statement and the magistrate decided that Jone Sawau was speaking the truth and that the accused had made the statement. He then went on to say that the accused and his two witnesses had told a different version from that which the accused had given to Supt. Sawau. At some stage the magistrate had to indicate whether he accepted the prosecutor's version. The mere fact that he says he rejects the accused's version at the same time as he accepts the prosecution version cannot be construed as meaning that he rejects one simply because he accepts the other.

Ground 1(c) alleges that the magistrates ignored inconsistencies in the prosecution evidence. This is a very vague and general ground and is of no assistance whatever to the Court or to the respondent. It is what the Court of Appeal complained of in Jack Fielding v. R (supra). In A.M. Cairns v. R. XX Cr. App. R.44 the Court of Appeal stated:-

"The Court wishes it to be understood that in future substantial particulars of misdirection or of other objections to the summing up, must always be set out in the notice of appeal ....... ."

The inconsistencies complained of, if any in fact exist, should be mentioned in particulars supporting that very ground.

I was referred to alleged inconsistencies in the evidence of the complainant and her boy friend. They did not appear to me to be inconsistencies. Thus I was referred to the complainant's evidence-in-chief that the accused was at one time working at Raymond's Night Club and that she had known him for 2 years. In cross-examination she said she did not know where the accused was working prior to this night. The appellant submits those remarks are inconsistent. She (complainant) did not say in-chief that the accused was working at Raymond's immediately before the night of the rape but rather that he had worked there and further on in the cross-examination she said that the accused was not at Raymond's the night before the rape. I have examined the other allegations of inconsistencies and they no more reflect on the credibility of the witnesses than that which I have quoted in detail.

The whole of ground one fails.

Ground 2 alleges that the magistrate erred in regarding the evidence of Jone Sawau as sufficient corroboration, and that he had failed adequately to direct himself on the issue of corroboration.

In Mohammed Kasim v. R., Cr. App. 48/76 which was a case of rape, I sated, as Judge conducting that appeal, at p. 18 of the typescript, that where a professional magistrate alone conducts a trial for a sexual offence, he is not obliged to specifically direct himself as to the need for corroboration provided there is corroboration and provided it is apparent that he must have accepted it.

The learned magistrate in this case did refer to the danger of convicting on uncorroborated evidence and stated that the evidence of Supt. Jone Sawau provided sufficient corroboration. The only evidence given by Jone Sawau was to introduce the appellant's statement in which the appellant admitted having intercourse with the complainant. What then did the magistrate mean when he said - "I accept the evidence of the witness Jone Sawau and his evidence provides sufficient corroboration"? It would have been better if the learned Magistrate had gone into this aspect in more detail to show in what way he regarded it as corroborative. The Magistrate in believing Jone Sawau was saying he was satisfied that the accused had admitted to the police that he had had intercourse with the complainant. In his evidence during the trial the accused denied having had intercourse with the complainant.

Dr. Sahu Khan submits that the complainant must be corroborated on the issue of lack of consent and that of sexual intercourse and that the learned magistrate had omitted to indicate which of those issues was corroborated by the evidence of Supt. Jone Sawau.

The magistrate was entitled to ask himself why the appellant should, soon after his arrest tell the police that he had intercourse with the complainant if this were not correct. It is well established that an inculpatory statement made by a person prior to his trial may be regarded as reflecting the truth. The magistrate was entitled to wonder why the appellant did not maintain that the complainant consented instead of untruthfully saying that he did not have intercourse at all. In my view he was entitled to conclude that the accused denied making that statement to Jone Sawau because the sexual intercourse which he had admitted in the statement was had without consent.

As I have said earlier, the appellant in his police statement to Supt. Jone Sawau that he had not seen P.W.6, the complainant's boy friend or P.W.8 the Indian at the scene on the night in question.

It is clear from the Magistrate's judgment that he was satisfied that the appellant had seen them and had spoken to them. It follows that the accused had lied to the police superintendent on those matters. It was held in R. v. Chapman 1973, 2 W.L.R. 876 at 883 that lies told out of Court may amount to corroboration,

"Proof of a lie told out of Court is capable of being direct evidence, admissible at the trial, amounting to affirmative proof of the untruthful of the defendant's denial of guilt. This in turn may tend to confirm the evidence against him and to implicate him in the offence charged."

Why should the appellant falsely deny to the Superintendent that the Indian and the boy friend had seen him? The appellant chased the boy friend by pretending to be a watchman thereby depriving the complainant of her companion before raping her. To admit the boy friend was there would defeat the appellant's allegation that the complainant was alone when the appellant met her and had intercourse with consent. Likewise the Indian, P.W.8, claimed that he had heard the complainant call out in fear and had found the accused with her. The accused had also got rid of the Indian and succeeded in being alone with the complainant. Those lies were also capable of corroborating a lack of consent in the light of the surrounding evidence which the magistrate had accepted.

Earlier in his judgment the magistrate referred to the medical evidence as corroborating that the complainant had had sexual intercourse recently.

Ground 2 also fails.

Ground 3 appears to find its way into most criminal appeals. It seems to be regarded as a make weight and yet it is not an easy ground to succeed upon. It may be as well to draw attention to the comments of the Privy Council in Aladesern v. R., 39 Cr. App. R. 184 at 186 that for such a ground to succeed the verdict should be one which no reasonable tribunal could have found. In R v. Chalk, 1961 Cr. L. Rev.326 at 327 the Court of Appeal observed that if there was evidence to go to the jury and no misdirection it would not set aside the verdict on the ground that it was one which a reasonable jury could not have arrived at. Although the evidence in a trial may be weak and lacking in corroboration, as for example in cases of sexual assault, the Court of Appeal said in F. J. Hopkins - Husson v. R. 34 Cr. App. R. 47 that it would not interfere.

In the instant appeal, it is obvious from the evidence to which I have referred that there was ample evidence to support a finding of guilt.

Ground 3 fails.

Accordingly the appeal against conviction is dismissed. But I would endorse a view frequently expressed by the learned Chief Justice that magistrates should endeavour to appraise the evidence with some particularity pointing to aspects where one witness supports another; where a set of circumstances supports the credibility of a witness's story, and so forth.

With regard to the appeal against sentence I notice that the accused has several convictions for dishonestly and one for assault causing actual bodily harm on 30.7.73 for which he received 7 months imprisonment suspended for 18 months. Therefore on 23/1/75 when the accused committed rape the suspended sentence was still extant and it was the magistrate's duty to consider it at the time of imposing the sentence for rape. The accused is not unfamiliar with the inside of a prison and has revealed a tendency to violence.

I do not consider the sentence of 4 years imprisonment to be excessive in all the circumstances.

I do observe that on 26.4.74, in the same court the magistrate had convicted this accused of larceny and sentenced him to 6 months imprisonment whilst the suspended sentence of 7 months imprisonment (supra) was still extant. Again the magistrate did not deal with it.

One wonders why a magistrate imposes suspended sentences if he subsequently fails to consider them on a subsequent conviction. Such failure is in breach of his magisterial duty and it is open to the Crown to seek the necessary order to require him to consider it.

The appeal against conviction and sentence is dismissed.

(SGD) J.T. WILLIAMS
JUDGE

LAUTOKA,
5th August, 1977.

Messrs. Sahu Khan & Sahu Khan for the Appellant
Director of Public Prosecutions for the Respondent

Date of Hearing: 15th July, 1977.