Numa v Reginam [1977] FJSC 55; Criminal Appeal 069 of 1977 (23 September 1977)

Fiji Islands - Numa v Reginam - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL No. 69 of 1977

1 ll>1 . JONE NUMA
2. SEFANAIA BASIYALO
3. ANASA RANASAU
4. MATA BIUNACAGILABA5. WAME VOSAKOTOIRA
Appellanellants

v

REGINAM
Respondent

JUDGMENT

On 30th May 1977 the five appellants were convicted by the Suva Magistrates Court of rape and received the following sentences:

First appellant - 5 years' imprent

Second appellant lant - 2 1/2 years' imprisonment

Third appellant - 4 1/2 years' imprisonment

Fourth appellant - 4 1/2 years' imprisonment

Fifth appellant - 3 1/2 years' imprisonment

In addition, the first appellant was convicted of wrongful confinement contrary to section 288 of the Penal Code for which he received a consecutive term of 6 months' imprisonment.

They all appeal against conviction and sentence.

At the trial the following facts were not in dispute:

On 13th December 1975 after 2 a.m. the five appellants, all policemen, were on duty as members of a team of mobile police force in Laucala Beach Estate area. The first appellant, a corporal, was the officer-in-charge and the police landrover was driven by Constable 670 Rajendra Lal.

On a minor road in a deserted area, they saw a parked car. Inside were a young man and a girl. Among other things the first appellant asked the girl if her father knew she was going around with the young man. She said he did, whereupon the first appellant told her he was going to take her to her father to verify what she had said and asked her to get into the landrover. He told the young man to drive ahead in his own car while they followed in the landrover. The landrover did not leave the area. A short distance away at another isolated place, the first appellant spread a raincoat on wet ground near the road and had sexual intercourse with her. He then invited the second appellant to do the same . The latter declined. The third and the fourth appellants then had sexual intercourse with the girl one after the other. The fifth appellant then, according to the prosecution evidence, also had sexual intercourse with the girl. His own version that he unsuccessfully attempted to have such intercourse was rejected by the learned Magistrate.

The defence raised was that of consent. For the second appellant it was also contended that no act of omission or commission by him could attach any criminal responsibility to him.

On the issue of lack of consent which was relevant to both counts, the prosecution relied mainly on the evidence of the complainant Vai and her male companion Prasad. Vai, a girl of about nineteen, lived in the same building as Prasad at Nacara Street and had been going out steadily with him for some time and the two intended to get married.

On the evening of 12th December 1975, they had gone to a dance which ended at 2 a.m. On their way back they decided to spend some time together in the car in Laucala Beach area as the house in which they lived was shared by several people. It was here that the landrover had found them. According to Vai she did not want to leave Prasad and get into the police landrover. Prasad also had protested but, they said, the first appellant had ordered her to go with him and he had also ordered Prasad to drive away by himself.

According to Vai, when the landrover stopped, the first appellant told her to get out and go with him. He threatened to strike her with his truncheon if she did not. He had then taken her a short distance off the road where he forcibly had sexual intercourse with her. The others then also had sexual intercourse with her as she lay there. At first the complainant said five persons had sexual intercourse with her but, in cross-examination, agreed that only four had done so. She had mentioned five because she had seen five men in the dock. She could not identify any of them as the place where they had intercourse with her was dark.

Afterwards, the landrover had dropped her, not at her father's house, but at Nacara Street where she lived with her married sister.

She said she was bleeding and in pain when Prasad arrived. According to him he found her lying on the floor of the bathroom with the shower running. He turned the shower off and, on being asked, she told him what the appellants had done to her. They then went to Samabula Police Station to make a report.

The first appellant who gave evidence on oath stated that he wanted to take her to her father because she looked "only a little girl". She willingly got into the landrover and soon after it began to move she asked him not to take her to her father. She offered to let them have sexual intercourse with her if they acceded to her request. He then asked the driver to stop the landrover and he and Vai who were both sitting next to the driver got off. Later the third, the fourth and the fifth appellant, who sat at the back also went to the girl where she lay after the intercourse. There was no question, accordingly to hint of any coercion or force. The second appellant was asked by him to have sexual intercourse with the girl but he said he did not wish to. The driver remained behind the steering wheel and took no part in the proceedings.

The other four appellants made unsworn statements. They supported the first appellant's evidence that no threat or force had been used against the girl and the third, fourth and the fifth appellants also said the intercourse with her was with her consent.

Constable Rajendra Lal, the driver, who was called by the prosecution, said that when he stopped the landrover the first appellant and the girl had got off and moved towards the front of the landrover He then saw nothing else as he went off to sleep. The appellant and Vai had spoken to each other in Fijian which he did not understand.

Prasad had gone to Vai's father's place at Samabula and, when the landrover failed to arrive, had reported the incident at Samabula Police Station. Soon after the landrover had dropped Vai at Nacara Street, it was stopped by Sgt. Savenaca who asked them if they had been to Laucala Beach Estate. The first appellant replied that they had not.

The trial was complicated by some significant matters which came out in evidence. On 13th December 1975 when Prasad and Vai went to report the matter at Samabula Police Station, she was interviewed alone. She was then taken to Laucala Beach Estate, to the scone of the alleged offence. Some time that morning a statement was recorded from her. A few days later the appellants wore also interviewed and a record made of the interviews. No further action was taken in the matter which appears then to have been treated as closed. Several months later, further inquiries were made by a senior police officer, and the appellants charged.

Vai was cross-examined at great length on her previous statements. She did say that her statement given at Samabula "differed" from the one that she gave some months later to Supt. Maqbool. Neither of the statements was put in and it is not clear in what respect, if at all, they differed from each other, and from the evidence given in Court. She admitted that in both the statements she had said that four men, not five, had had sexual intercourse with her; and that was the truth.About the first statement made by her she said, "I cannot recall what I said in Samabula statement. "

The Court was never told what, if anything, was in that statement on the issue of consent. Vai did admit that at that time she did not wish the matter to go to Court "because of fear of my relatives". She agreed to do so some months later when Supt. Maqbool interviewed her. From such evidence no inference can be drawn as to presence or otherwise of consent at the time of the sexual intercourse.

The whole defence basis of the alleged consent on her part was that she did not wish to be taken to her father's house. This was put to her several times but she strongly denied it. No suggestion was made to her that she had said so, or admitted, in any of her statements to the police. In fact she said in her evidence:

"I agreed for them to take me to my father's house. I didn't know that they were going to rape me."

She did admit that in her Samabula statement she had said that she did not "resist" the first appellant, but she stated several times in her evidence that she never consented to having sexual intercourse with any of the appellants. Her evidence, of course, was that the first appellant had threatened to strike her with his truncheon. In my view, as the evidence stood, there was no reason why she should have been treated as a witness who had made prior contradictory statements on material matters.

Statements made by each of the appellants during interviews soon after the incident were put in evidence at the trial. Each had completely denied ever being in the vicinity of Laucala Beach Estate during that night or the morning. At the trial each admitted that it was a deliberate lie. Such a lie could only have been a result of concerted action on their part. Their reason for telling the lie was, according to them, to protect themselves against any possible disciplinary action by the police force, if it became known that they had had sexual intercourse with a girl while on patrol duty. Supt. Maqbool said that such an intercourse, if had been with the girl's consent, would not be regarded as a serious disciplinary matter.

This then was the evidence on the issue of consent.

The learned Magistrate, in his very long judgment, took great care in analysing the evidence before him. His observation of Vai in the witness box led him to treat her evidence as completely reliable despite some confusion and hesitation under cross-examination. She was shy and it was found necessary to clear the Court of general public to obtain much of her testimony. There was no allegation of general immorality against her.

He, however, quite correctly, considered it necessary to look for confirmatory evidence on the issue of lack of consent. He said:

"Contrary to Mr. Chandra's submission there is no doubt in my mind that the court must carefully consider the evidence to ascertain whether there is corroboration of the complainant's lack of consent."

He found two pieces of evidence which, if accepted, could in his view amount to corroboration. The first was the evidence of Prasad relating to Vai's condition when he first saw her after the incident. Vai was lying on the floor of the bathroom with the shower running and looked "like unconscious". Prasad also described her reaction when he spoke to her. The learned Magistrate accepted this evidence as true and in assessing its value referred to the cases of Redpath (46 Cr.App.R. 319) and Knight (50 Cr.App.R.122).

In Redpath the headnote reads:

" In a sexual offence the distressed condition of the complainant is capable of amounting to corroboration of the complainant evidence, but the weight of such evidence as corroboration will vary according to the circumstances of the case."

In Knight the Court warned of the danger of feigned distress, but dismissed the appeal because the appellant had during investigation told a significant lie to the police about his whereabouts at the relevant time which could amount to additional corroboration.

In this case the appellants told repeated lies to the police when first interviewed and those lies amount really to concerted fabrication on their part to frustrate investigation.

While assessing the weight of such evidence as corroboration of Vai's evidence as to lack of consent, the Court had to look at the other circumstances of the case. This the learned Magistrate did. Five policemen in uniform were alone with the "little girl" in an isolated place at night after getting rid of her male companion. They insisted in their evidence that she agreed to have sexual intercourse not only with the first appellant but with all of them, this girl who had spent the whole evening with her lover whom she intended to marry.Ais I have already said, there was no suggestion that the girl was of immoral character. The Magistrate rejected the appellants' explanation, given for the first time, that the lies were to ward off any disciplinary action.

In my view, therefore, he was entitled to find, as he did, that the absence of consent was established beyond reasonable doubt.

The appeal of the first, third, fourth and fifth appellants against their conviction on the first count is dismissed.

As for the second appellant, the learned Magistrate recognised that his position was quite different from that of the others. He had been invited, but declined, to have sexual intercourse with Vai. though he remained close by with full knowledge of what was taking place. To what extent, if any, was he criminally responsible for the act of the principal offenders? The learned Magistrate said -

"Accused 2 in my view comes in an entirely different category, for I have already found that he did not actually have sexual intercourse with the Complainant. However, in my view, whilst this may well be a mitigating feature it does not assist him so far as the present charge is concerned for he clearly was in a position to stop the violation of this girl, and as a police officer had an overriding duty so to do, but he did not lift one finger to assist her. Thus I have no hesitation in finding that he falls, squarely within section 21(b) Penal Code, Cap. 11 which states that 'every person who does or omits to do, any act for the purpose of enabling or aiding another person to commit the offence is deemed to have taken part in committing the offence is guilty of the offence and may be charged with actually committing it'."

Learned Counsel for the respondent supported this view at the hearing of the appeal. He said,

"He (second accused) omitted to intervene and stop the other accused from committing rape. That brings him under section 21(1)(b). He had a duty as a policeman to intervene."

The exact words of section 21(1)(b) of the Penal Code are "every person who does or omits to do any act for the purpose of enabling or aiding "nether person to commit the offence". There is no mention of the word "duty". For purposes of this section a policeman does not fall into any special category. The provision applies equally to "every person". The correct approach would be to see if there is any evidence of any act or omission by the second appellant committed deliberately for the purpose of "enabling or aiding" " the other appellants in the commission of rape. More failure to prevent a crime cannot make a policeman guilty of that crime.

The second appellant was certainly present with full knowledge of what was happening. Is that enough? Learned author of Archbold (39th Edn. para. 4126) says:

"There must also be a participation in the act; for even if a man is present whilst an offence is committed, if he takes no part in it and does not act in concert with those who commit it, he does not become an aider and abettor merely because he does not endeavour to prevent the offence, or fails to apprehend the offender."

To make mere presence sufficient to support a conviction, there must be evidence of concert or prior agreement as provided in section 22 of the Penal Code. There was no evidence of such prior agreement and the learned Magistrate quite correctly did not refer to that section. In section 21(1)(b) of the Penal Code, I do not think the words "omits to do" can bear a wider meaning than can be supported by authority. The learned author of Criminal Law by Smith and Hogan (3rd Edn. page 96) says:

" It would seem that where the evidence establishes mere presence without any positive act a prior agreement that the crime be committed must be proved. But if some positive act of assistance is voluntarily done, with knowledge of the circumstances constituting the offence, that is enough to sustain a conviction; and it is irrelevant, in the latter case, that the aid is not given with the motive or purpose of encouraging the crime.

Where D has a right to control the actions of another and he deliberately refrains from exercising it. his inactivity may be a positive encouragement to tine other to perform an illegal act, and. therefore, an aiding and abetting. A husband who stands by and watches his wife drown their children is guilty of abetting the homicide. His deliberate abstention from action give encouragement and authority to his wife's act. If a licensee of a public house stands by and watches his customers drinking after hours, he is guilty of aiding and abetting them in doing so."

The important words in the passage are "right to control the action of another". Did the second appellant have the right to control the action of the first appellant? He was a member of a police unit whose officer-in-charge was the first appellant. 'The learned Magistrate recognised this when he said in his judgment-

"Accused 1, I am satisfied was not only in charge of the police party that night but was the prime mover throughout."

That being the case, there had to be evidence of some act on the part of the second appellant of aiding and abetting before he could be held criminally responsible for the others' action. There is some vague suggestion in the fourth appellant's unsworn statement that the raincoat used by the first appellant may have been the second appellant's. The fourth appellant said -

"A few minutes later accused asked for a raincoat. I took one to him who was with Accused 2."

It is not at all clear whether he meant "accused 1 was with accused 2" or he took the raincoat which was with accused 2. In any case, the learned Magistrate had put a specific question about the raincoat to the first appellant to which he had replied.

"To Court - I brought the raincoat from Mata (fourth appellant) in the land rover."

There is no evidence that the second appellant had given his raincoat to the first appellant for use in the commission of the offence.

All that remains than is the second appellant's presence near the scene of the crime committed by a senior officer of his. To bring him within the scope of section 21 (1 ) (b) of the Penal Code on this evidence would be, in my view, to extend the principle of criminal responsibility beyond a point warranted by authority. His "duty" as a policeman is, for this purpose, irrelevant.

I have therefore, come to the conclusion that the second appellant was wrongly convicted. His conviction is quashed and sentence set aside.

As for the second count on which the first appellant alone was convicted, learned Counsel for the respondent concedes that the sentence imposed in respect of that offence ought to have been made concurrent with the sentence on tie first count. Not much argument was directed to this count before this Court, and I will only mention in passing that the particulars of the charge mention no time whatever, neither the day nor the month nor oven the year. This however, was not made an issue either at the trial or here. Much of what has been said about lack of consent in this judgment applies to this offence too. The learned Magistrate held that Vai was made to enter the landrover against her wish and that she would not have been allowed to leave if she had so desired. He rejected the defence contention that this was done to safeguard her moral welfare. On the evidence he was entitled to come to that finding.

The first appellant's appeal against conviction on that count is, therefore, also dismissed.

As for sentences, the learned Magistrate was entitled to take a serious view of such conduct on the part of policeman on duty. The appeal of each appellant, that is, the first, third, fourth and fifth appellants against sentences on the first count is dismissed.

The sentence of 6 months' imprisonment imposed on the first appellant on the second count will remain undisturbed but it will be served concurrently with the sentence imposed on him on the first count.

G. Mishra
ACTING CHIEF JUSTICE

Suva,
23rd September, 1977