Tukana v Reginam [1977] FJSC 31; Criminal Appeal 039 of 1977 (27 May 1977)

Fiji Islands - Tukana v Reginam - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL No. 39 of 1977

BETWEE>:

PAULA TUKANA

AND:

REGINAM

This iappeal against the conviction of the appellant by Suva Magi Magistrates Court on the 30th March 1977 of indecent assault contrary to on 148(1) of the Penal Code.

The complainant was a ni a nine year old girl who gave unsworn evidence and whose testimony as a matter of law required corroboration (proviso to section 10(1) of the Juveniles Act 1973). However the question of corroboration only arises if the witness is otherwise to be believed. If the witness is not credible her evidence must be rejected, even if there could be found evidence capable of being corroboration in other testimony (D.P.P. v. Kilbourne (1973) 57 Cr.App.R. 381).

The complainant's evidence, when analysed and tested against all the evidence in the case, is revealed as evasive, self-contradictory and inherently unreliable. While the trial Magistrate in his judgment realised that her testimony was suspect, and in many respects discredited by that of other prosecution witnesses, he failed to appreciate that her evidence was not worthy of belief.

Further, the terms of a complaint which the complaint was alleged to have subsequently made was admitted in evidence when it was quite clearly inadmissible, having been elicited by threats of an intimidating character (R. v. Osborne [1905] UKLawRpKQB 45; (1905) 1 K.B. 551 at 561), which again goes to the credibility of the complainant.

Although in the circumstances it is not necessary to decide the point, it is also highly doubtful

whether evidence that was led to corroborate the unsworn testimony of the complainant amounted to corroboration. It constituted of the purported eye-witness accounts of two women who looked through a hole in the wall of a room in which were the complainant, her younger brother, and the appellant who was responsible for their care. The complainant and the appellant were lying on a mat on the floor and resting with a blanket over them, and the two women claimed to see movements taking place beneath the blanket -although their respective accounts of the position in which the complainant and appellant were lying and their description of the movements differed markedly, neither account being compatible with the complainant's version of events. The appellant admitted from the outset that he and the complainant were lying on the mat and were resting with a blanket over them but denied that any indecency occurred; and the mere fact that the blanket was seen to move would in the circumstances hardly constitute corroboration in a material particular implicating the appellant or confirming the disputed items in the case.

There is one other point to which attention should he drawn, and it is that the prosecution under the provisions of section 184A of the Criminal Procedure Code were allowed to put in evidence a medical report, as the appellant had been served with a copy of same at least ten clear days before the hearing and had not given notice not less than three clear days before the trial that he required the doctor to attend as a witness. This report showed that the complainant was a virgin, that there were no marks of violence that the hymen was intact, but that there was a very slight tear of 1-2 millimetres on the lowermost side of the hymen. As the trial Magistrate made no reference to this in his judgment it may be that he placed no reliance on it, particularly as at no stage of her evidence did the complainant maintain that the appellant attempted in any way to penetrate her. Nevertheless the prosecution must have thought the medical report was relevant, and in the circumstances it would have been desirable for the trial Magistrate, as he was entitled to do, to call the doctor for examination as to what inferences, if any, could be drawn from this slight tear. For instance was it of a nature that could have been caused by a young girl washing herself rather vigorously in that area, using toilet paper carelessly, or by some other innocent action; or was it consistent with attempted penetration by a finger or a penis. Without calling the doctor to elaborate thereon the medical report was, at its best, valueless or, at its worst, prejudicial to the appellant.

In all the circumstances of this case the Crown concedes that it would not be safe to allow the conviction to stand. It is accordingly quashed and the sentence set aside.

Clifford H. Grant
CHIEF JUSTICE

Suva,
27th May 1977.